State Of Louisiana VS David Sosa, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 KA 1223 STATE OF LOUISIANA VERSUS DAVID SOSA JR Judgment Rendered Appealed December 21 2007 from the 22nd Judicial District Court In and for the Parish of St Tammany Louisiana Case No 392182 The Honorable Martin E Coady Judge Presiding Walter P Reed Counsel for Appellee District State of Louisiana Attorney Scott C Gardner Assistant District Attorney Covington Louisiana By Kathryn Landry Special Appeals Counsel Baton Rouge Louisiana Barbara A Watzke Counsel for Defendant Slidell Louisiana David Sosa Jr Appellant and J Kevin McNary Covington Louisiana BEFORE GAIDRY McDONALD AND McCLENDON JJ GAIDRY J David Sosa Jr The defendant with possession of twenty eight grams of cocaine 40 967 F 1 or of mixture a Defendant a containing cocaine pleaded not guilty was jury trial defendant a sentenced to which fine offender multiple defendant five prior twenty thiliy five at year sentence Defendant charged as The state and felony was guilty hearing hard labor the first five years of suspended second denied after were The trial court also parole bill of information a violation of La R S following a filed a and he was Defendant resentenced or now For the appeals habitual offender adjudication following reasons we s to suspension the first five years of the sentence without benefit of of sentence the hearing a habitual offender vacated imposed subsequently years at hard labor without benefit of probation 35 Defendant was adjudicated was found twenty five 25 years the sentence without benefit of 50 000 00 was a He filed motions to suppress the evidence seized and his confession which Following but less than two hundred or more grams of information charged by bill was parole affirm the conviction and sentence FACTS On January 11 Donald Pierce made or eighteen wheeler Parish was days After driving a earlier a 2005 about 7 00 Louisiana State a m traffic stop of defendant for too with defendant speaking following closely on Interstate Highway a Upon fmiher his claimed destination Defendant s Trooper tractor 12 in St questioning explanation Trooper of where he was trailer Tammany Trooper Pierce determined rental vehicle and that the rental agreement had inconsistencies in defendant the vehicle at that he expired two Pierce noticed coming from and Trooper Pierce asked defendant if he could search agreed and signed 2 a consent to search form troopers alTived Sh011ly thereafter Three other state Pierce with the search of the vehicle the hood and found in the front 44 125 was After his informed of his and agreed the cocaine to Trooper engine compartment a The total bag of mixture of a weight of the cocaine grams defendant arrest and interviewed headqual1ers assist Trooper Chad Guidry searched under compressed powder that contained cocaine mixture to rights answer was belonged to State to Police by Trooper Keith Briggs under Miranda any taken signed Defendant statement a Troop of L was form rights questions Defendant advised Trooper Briggs that him and that he had obtained it in Houston ASSIGNMENTS OF ERROR Defendant has the part of the trial the designated following six of assigmnents error cOUl1 1 Whether the contraband into evidence court elTed in when it was allowing the seized obtained as a result of a warrantless vehicle search that exceeded the scope of consent given and therefore constituted a violation of defendant s Fourth Amendment 2 Whether contraband as and seizures right against illegal searches evidence the elTed cOUl1 where it was in the admitting seized and obtained as a result of a pre textual sic stop for which there was no probable cause based upon the racial profiling of defendant a Mexican American 3 Whether contraband obtained as as a 4 the court erred III evidence when said evidence result of defendant s seized and should not as a result dismantling of the was of a warrantless search which extended to the sic was the illegal continued detention Whether the evidence which vehicle and therefore admitting seized have been allowed into evidence 5 Whether the District Court erred in inculpatory statements made by defendant which obtained by duress and after defendant s request for evidence the were allowing into counsel J on 6 Whether the District Court erred defendant as a multiple offender sentencing III 1 FIRST ASSIGNMENT OF ERROR In his first his denying III assignment of motion to defendant argues the trial elTor suppress the evidence defendant contends that the search of his vehicle the scope of the consent Trial comis 3 are given 03 2592 U S 977 p 5 125 S Ct La 9 9 04 1860 an 161 L Ed 2d 728 and including Initially I have included we the went judge on the reference to a on a a motion motion to State 1179 cert denied v 544 2005 beyond a Terry type protective a weapon could be hidden dismantling with screwdrivers engine compartments note that trial ruling abuse of that discretion search of the passenger compmiment where not a 884 So 2d 1176 Defendant contends the search should Specifically the officers exceeded by vested with great discretion when suppress will not be disturbed absent Long elTed 2 Consequently the ruling of to suppress seized court that had been Terry type the door securely protective and panels sealed search is In his brief under the Assigmnents of Enor heading defendant lists six assigmllents Law and Argument portion of his brief defendant briefs only error For the most part the six listed assigmnents of enor are of error However in the four assignments of addressed in the argument of defendant s brief For example it appears that the first and fomih listed assignments of enor have been consolidated into a single assignment of enor under the first briefed assigmnent of error and the second and third listed single assigmnent of error under the second briefed assigmnent of error There are portions of the six listed of enor however that are not briefed e g the racial profiling issue in the assignments second listed assigmnent of enor and the duress issue in the fifth listed assigmnent of enor Defendant provides no law or substantive argument regarding these issues Accordingly these paliicular issues and any other issues mentioned in any of the six See listed assignments of enor that have not been briefed ale considered abandoned Unifonn Rules ofLouisiana Courts of Appeal Rule 2 4 12 assignments 2 3 of enor seem to have been consolidated into Defendant does not contest the In are all determining whether the validity of his ruling on a consent to search defendant s motion to suppress was conect we hearing on the motion We may consider not limited to the evidence adduced at the peliinent 1223 n evidence given at the trial of the 2 La 1979 4 case State v Chopin 372 2d So 1222 The misplaced that defendant search his vehicle contents remove any items the Louisiana Office of State Police deemed investigation Pierce Nothing compartment passenger or by the defendant and in that consent form nor or to peliinent anything in to Trooper suggests that the search would be limited testimony s were controlled to and its their owned signed by the defendant provides Trooper Pierce authorized voluntarily that form search consent to to that the troopers would search for weapons the only During the actual search the quarter panels in the doors behind the removed with seat were are natural suspicious tampering circumstance since the vehicle was testified at found under the hood the space in the hearing Trooper Pierce on with the was a According the motion to suppress new to can Trooper Guidry he A black be hidden qumier panels rental vehicle was a void able was to raise the Thus that void piece of plastic about despite defendant s an or open or to inch and assertion there required order to discover the hidden cocaine We find further that defendant s consent to search his vehicle in any way expressed object The scope of In this to search his vehicle of the search The According securely sealed engine compartments that were unsealed qualified a Trooper Guidry who there plastic shroud covered the cocaine in that space dismantling in there engine compartment where the air conditioning blower unit the firewall were no to According compmiments in vehicles where contraband cocaine saw screwdriver Pierce observed evidence of Trooper adjoins a case 1804 114 L Ed 2d 297 testified that he tried defendant and did not See Florida v 1991 to search is a place Jimeno Pierce explicit limitation 500 U S 248 251 52 At the motion not generally defined by its granted Trooper any was to suppress permission on the scope 111 S Ct 1801 hearing defendant stop the troopers from dismantling the vehicle 5 According form did not to defendant he advised not state supposed could do reveals so to suppress suppress 4 However of the vehicle hearing our At any time A Anderson about the testified Mr at the motion time did the defendant revoke as At the motion or to follows Sosa tell you I want you to stop No he did not Q Trooper the search of the vehicle hearing Trooper Pierce A no to videotape of the stop testimony adduced Furthennore consent to Q At any time did searching my car review of the spoke established that at revoke his were Trooper Anderson supposedly responded that they so in Louisiana dismantling to do to consent they would dismantle his vehicle and that they instance where defendant no attempt that Trooper Chris Anderson that the No did Mr Sosa tell you I want a lawyer At any time did any other State Trooper or any other law enforcement person tell you that Mr Sosa had requested a Q lawyer A or that he had asked that the search be stopped No he did not Q Are you aware of any such request by Mr Sosa A No Im not At the motion to suppress to hearing Trooper Anderson who stood next defendant while other troopers searched the vehicle testified Q And during the periods of time that you were present time did the defendant indicate his consent to search the A to you that he wished to as follows at any revoke No he did not vehicle during the time that you were present did the defendant indicate to anybody else that you overheard that he Q At any time wished to revoke his consent to search the vehicle 4 Defendant s traffic patrol unit and the suppress hearing stop was videotape recorded by of the stop the mounted video was and the trial 6 camera in Trooper Pierce s introduced into evidence at the motion to A No he did not Q Have you reviewed the stop and defendant A seen a VHS tape or DVD of the VHS with the yourself present standing by Yes I have And at any time did you overhear anything such that took place during the recorded portion of the stop Q A findings reviewing of fact a trial court ruling s great weight is placed because the court had the relative opportunity to on a motion the trial court on s credibility determination aside unless it is clearly contrary State v Peterson 03 1806 p 9 a denying the motion consensual search the vehicle to suppress the and that the The trial court s drugs trial conclusions court are consent already an been Further we tampered open space in the of the vehicle find the removal of with and the s not La App 1st Cir writ set nor few 606 7 or to a in the record quarter panels that had activity search La over dismantling a See State denied 512 So 2d 464 limited to the passenger compartment was limited the scope of characterization of the given 868 natural void a a the record found that there did not constitute The search did not exceed the scope of consent So 2d 86 not lifting of a black plastic covering engine compartment despite defendant a 2d So supported by Defendant neither revoked his consent to the search his 882 found in were to weigh the 1st Cir 12 31 03 App La So 2d 786 792 writ denied 2004 0317 La 9 3 04 In detennination will courts Appellate based to suppress observe the witnesses and credibility of their testimony evidence that as No I did not When on tape of v as such Elias 509 1987 search only for weapons We find of defendant no abuse of discretion in the trial motion s The first to suppress court s denial of this portion assignment of error is without merit SECOND ASSIGNMENT OF ERROR In his second stop assigmnent of pretextual was Specifically for continued his unrelated and an unconstitutional and that operate the vehicle he on that defendant contends that based upon intent to detain him was and defendant argues that his traffic error was his way without further once he detention Trooper Pierce insupportable s subjective reason the stop produced proof that he was entitled to he should have been allowed to driving illegal was proceed delay for additional questioning The fomih amendment to the federal constitution and Article 1 the Louisiana Constitution seIzures However interrogate one La C Cr P Reasonable probable the protect people against unreasonable searches and right of law enforcement officers 215 1 cause for and cause as an must well an infringement to U S 953 the The individual right or s make to must right an Belton 441 So 2d 1195 over than case 1198 because he 8 be to free by to from be based upon reasonable La engaged 1983 cert in criminal denied 466 1984 Pierce testified at the motion to suppress pulled defendant jurisprudence investigatory stop and is about to be 104 S Ct 2158 80 L Ed 2d 543 Trooper that he v and federal knowledge of facts and circumstances believe that he has been is conduct State stop and recognized by be determined under the facts of each question the particular individual detained cause state to investigatory detention is something less on goveInmental interference by both as whether the officer had sufficient justify of criminal conduct is reasonably suspected art 9 5 of was hearing and the trial following too closely about fifteen feet failure to eighteen wheeler tanker truck an follow the forward vehicle in to Trooper Pierce had probable occun for ed and State v 98 1949 Shapiro defendant s speculation La to as App 4th Cir legitimate a Trooper is irrelevant The United States 806 812 13 116 S Ct issue of the subjective or 1769 an Pierce manner 12 29 99 La R S 32 81 751 So 2d 337 stop defendant to real motives for 135 L Ed 2d 89 stopping US v only we never held making outside the context of that an inspection officer s motive invalidates objectively justifiable behavior under the Fourth Amendment but we have repeatedly held and asserted the contrary In United States v Villamonte Marquez inventory search 462 U S 579 or 584 n administrative 3 103 S Ct 2573 2577 n 3 77 L Ed 2d 22 1983 we flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification In United States L Ed 2d 427 a mere S Ct 138 said that a 98 S Ct 1717 94 S Ct 467 traffic violation a narcotics search And in Scott 1 218 be rendered invalid not pretext for n held that we would at 470 128 Robinson 414 U S 1973 the SOli here was v 1723 v by id does not ubjective intent alone lawful conduct illegal or unconstitutional Robinson as having established that the fact does not s have the of mind which is state anest 38 of the fact that it at 221 n 1 94 United States 436 U S 56 L Ed 2d 168 1978 we make otherwise We described that the officer hypothecated by the legal justification for the officer s action does not invalidate the action taken as long as the 436 circumstances viewed objectively justify that action reasons US at 136 play no analysis 5 Defendant which was provide 138 role in issued a the 98 S Ct at 1723 ordinary probable citation for Subjective cause following too closely 9 him addressed the 1996 intent of law enforcement officers when have and 517 U S arrest Not s reasonable basis objectively Court in Whren Supreme 1774 s defendant traffic violation had a reason on prudent See La C Cr P art 215 1 vehicle s Trooper Pierce had stop believe Accordingly Trooper Pierce had stopping defendant Based reasonable and a to cause s intentions Fourth Amendment a When where he was coming from from coming Texas and Trooper Pierce going to Florida going for the realized that defendant s to Defendant yet he had the rental car had been expired for for rented the vehicle defendant had assault with aggravated this during with his At this from defendant holidays in s term of lease Trooper Pierce asked him who had was his friend Casey s girlfriend Pierce also discovered that Trooper weapon defendant became questioning answers deadly a agreement of including possession arrests prior Defendant later days with him for the was Trooper name week with his mother a two only replied that it but stated he did not know her defendant When days two that he had explained story about taking his mother home Pierce discovered that the rental Trooper was After further discussion holidays changed his story and said that his mother Florida defendant stated that he Defendant claimed that he spent fabrication in Texas and to Texas taken his mother home was a him about Trooper Pierce stopped defendant and questioned marijuana and Pierce testified that fidgety and hesitant point Trooper Pierce obtained written consent to search the nervous vehicle Given the lawfulness of the initial stop the reasonableness of the escalating between encounter whether the actions undertaken reasonably responsive place as stop to augmented by Defendant s unusual nor consent from the defendant Trooper impermissible Trooper to Pierce following hinged the nervous Pierce s Pierce demeanor focus that stop on were in the first justifying the stop gleaned by Trooper responses shift in Trooper Pierce by Trooper information a and the circumstances deceptive criminal record led to defendant during and was the prior neither Pierce obtained both verbal and written search the vehicle and within troopers conducted the search while defendant stood 0 next to moments three Trooper Pierce s patrol unit The time between defendant discovery of the cocaine in the vehicle from the entire span of time the cocaine found was their diligently pursued traffic and stop Amendment So 2d 947 defendant s noted search the vehicle probable been The cause See State Nothing coerced v of defendant s discovered merit to the no probable However search the vehicle to cause exceptions to the requirements of both of such consent is free of duress or s dependent 343 App La defendant voluntary Trooper s consent one of the a wan ant upon it or having implied 1st Cir was and 1983 forced or consent rendered the search constitutionally valid Id His second to suppress is coercion either express 432 So 2d 340 defendant to consent pursuant abuse of discretion in the trial court motion 798 consent to and seizure of the cocaine no Fourth 10 26 01 defendant contends that were in the record indicates that We find La of the Trooper Pierce both verbal and written Montgomery Accordingly The troopers under the find we until previously validity given voluntarily over unlawfully detained A search conducted established 2 5 pp The As probable defendant gave specifically was the search of the vehicle Pierce did not need reasonable Accordingly per curiam present until the drugs not was was pulled relatively brief duration Miller 2000 1657 argument that he Regarding cause v search was minutes seven the search and the to seventeen minutes defendant thirty about investigation and See State less than moment the was consensual 949 51 was consent s s denial of this assigmnent of portion enor is without merit THIRD ASSIGNMENT OF ERROR In his third assigmnent of elTor defendant Trooper Briggs that the cocaine was 11 argues that his statement to his should have been suppressed Specifically defendant contends that his refusal was tantamount to any Arizona v 16 L Ed 2d 694 if 1966 384 U S a there formal or even an direct be no for or a a particular attorney Abadie 612 So 2d 1 L Ed 2d 35 a to 5 reach lawyer to interpretation narrow to The questioning unsuccessful attempt could recommend police than can La a cert 436 According at time asked for signed a to but is an wipers give a whether the broad rather suspect s request for counsel State denied 510 U S 816 66 114 S Ct v 126 statement Trooper Briggs and plastic hearing and the to suppress of rights form a written was When s questions read his Miranda placed rights Trooper Briggs asked the statement defendant informed him but that he would answer Trooper Briggs then questioned Defendant stated that the cocaine 2 100 00 for it in Houston took it to his mother in clear inquiry Indeed courts must attOlney The defendant defendant about the cocaine paid not be sufficiently conveyed by or an that he would not make any written statements of attorney before an Trooper Briggs during his custodial interview defendant defendant if he would prepare any and at manner request for counsel need lawyer a 1602 1993 trial and statement 86 S Ct in any consult with Trooper Briggs testified at both the motion no written a 444 45 suspect indicates stage of the process that he wishes speaking give request for counsel a Under Miranda 1612 to it under the plastic s cover house his he was packaged it the windshield by of his rental vehicle In offering confessing defendant statement to was to answer any Trooper Briggs not requesting While the refusal questions that asked of him the cocaine counsel appeared 12 was his by simply refusing to be based upon and then orally it is clear that to give nothing a written more than defendant s desire to not have his writing interpretations with an attorney before was in no way memorialized in statements for whatever find that such refusal we broadest of inculpatory and under the reason suggestive of wish a consult to speaking This assignment of elTor also lacks merit FOURTH ASSIGNMENT OF ERROR In his fourth elTed in adjudicating him would constitute predicate For a of elTor defendant argues that the trial a misdemeanor in Louisiana and as such could not Texas be used offense to enhance his sentence conviction from another state to a comi felony habitual offender Specifically he second previous conviction of possession of marijuana in contends that his as a assigmnent serve as a for predicate felony purposes of the Louisiana Habitual Offender Law the conviction must be of a crime which if committed in this 15 529 1 A If the other state 1 convicted does not Louisiana law felony under necessarily that conviction to the comis to nature jurisdiction not the jurisdiction State 734 So 2d 21 The v of the Hennis 6 1993 6 in enhance felony a under subsequent The habitual offender statute analogous Louisiana crime or for the offense in the other state to or 4 5 La La 7 2 99 App 1st Cir Kleberg County April hearing s 1993 sentence was a Texas for second 29 19 2 99 747 So 2d 16 enhance defendant the habitual offender on was state 98 0665 pp possession of marijuana to a involved in the crime of the other and conviction degree felony under docket number pleaded guilty to the charge and was sentenced to two years imprisomnent sentence was suspended and defendant was placed on probation for two years Defendant The be used determine the predicate offense used October 26 unlawful cannot act See La R S felony include conduct considered 24 writ denied 99 0783 at a offense of which the defendant s penalty provided introduced into evidence on would be the habitual offender statute requires Louisiana according state 3 Under the 93 CRF 248 unlawful applicable possession of marijuana is the knowing of marijuana in an amount a of second Punishment for confinement in prison for fifty pounds According US by and intentional Patrol after agents less but more than five more We find that classified as fine not to of felony See La R S 40 966 A states Under Louisiana law less than sixty pounds is law does not prohibit distribute when the intent to distribute the a can possessed was such of 3 This assertion is the found inside atTest is less than marijuana for and which is use in an a amount The with intent to The sixty pounds conviction personal easily erroneous inferring possession marijuana Texas of In his brief defendant be inferred from the circumstances s atTested crime would be a simple possession of marijuana misdemeanor quantity was driving and 40 966 B 1 less 10 000 00 exceed with intent to distribute factfinder from a facts of the defendant defendant was marijuana or being found in possession under Louisiana law possession pounds than twenty years approximately twenty pounds of marijuana The marijuana the drive shaft of the truck defendant possession under the Texas Penal Code is any term of not assess a degree felony the Border Patrol offense report defendant to Border or degree felony than two years and the court may second Texas statute Nothing in the suggests that the Quite to the contrary transpOliation of twenty pounds of marijuana hidden in the drive shaft of the vehicle clearly suggests possession with intent to distribute See State Trahan 425 So 2d 1222 1225 27 La 1983 4 7 0916 App La App 4th Cir La 2 1 02 01 writ denied 1265 La v Johnson 00 1528 pp 780 So 2d 1140 1143 45 writ denied 2001 807 So 2d 854 4th Cir 1992 545 So 2d 1259 14 2 State v State v Rose 612 So 2d 97 App 2nd Cir 14 1989 607 So 2d 974 978 79 La 1993 State v La Winzer Accordingly the trial court did not en in concluding that the predicate offense Louisiana would be The fourth a felony if committed III in Louisiana assigmnent of enor is without merit CONVICTION HABITUAL AND SENTENCE AFFIRMED 5 OFFENDER ADJUDICATION
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