State Of Louisiana VS Fernando Loza
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 KA 1406 xJ STATE OF LOUISIANA VERSUS FERNANDO LOZA 91f Judgment Rendered December 21 2007 Appealed from the Twenty First Judicial District Court In and for the Parish of Livingston Louisiana Trial Court Number 19 468 Honorable Ernest G Drake Jr Scott M Penilloux District Attorney Patrick W Dunn Asst District Livingston Attorney Judge Attorneys for State Appellee LA James A Wood Attorney for Baton Defendant Rouge LA BEFORE CARTER C J Appellant PETTIGREW AND WELCH JJ WELCH J The defendant Fernando Loza possession with intent He and initially pled or not confession withdrew his not appeal the trial So 2d 584 The trial on appeals urging his motion defendant a and pled guilty After accepting bill of information with violation of La R S 40 966 A a motion as the evidence The defendant subsequently charged reserving to suppress the defendant s See State Finding v his right Crosby guilty plea the trial to 338 court The defendant years single assignment of error challenging the to suppress 1 to suppress Department of Corrections for eight conviction and s a denied the motion denial of the motion 1976 sentenced him to the now court guilty plea s marijuana charged by The defendant filed guilty court La distribute to was trial court s ruling sentence no merit in the assigned error we affinn the FACTS Because the defendant developed at introduced a Interstate 12 in infonnation search his were 2005 Trooper the motion following During was the testimony too arrested after a traffic stop on Trooper William Hunter closely behind another vehicle After engaging the defendant in general Hunter returned to his vehicle to check the defendant Trooper the search a A signed a written consent to search chest of drawers located in the dismantled and nine packages approximately videotape s Hunter asked the defendant for consent to The defendant assented and discovered inside gleaned from fully State Police identification and s were were never to suppress the defendant When he returned van facts following Livingston Parish Louisiana the defendant conversation van was 10 on the defendant for obtaining form The the hearing at On March stopped trial pled guilty the facts of the offense rear 34 of the stop search and into evidence 2 of the defendant s pounds of marijuana arrest was introduced DENIAL OF MOTION TO SUPPRESS In his sole denying of of assignment his motion to suppress suppression of the evidence was that the result of involved in the evidence is threefold unconstitutional an Trooper Hunter the defendant contends the trial error K 9 officer a The defendant pretextual stop not Specifically upon based upon the a illegal arrest and or detention and was At the motion to suppress working patrol defendant in Livingston following traffic stop too was rumor that he hearing Trooper closely behind a his vehicle and Trooper consent Chevy van The defendant handed identification card Trooper Trooper pulled was indicated he going was to going Ohio to a going side of the defendant s s sheet of paper After a the van s Trooper license the containing a photocopied reason for the brief hesitation the defendant In response to further questioning the defendant visit his sister In his brief Hunter onto a have it with him but he did have identification Hunter was by the Trooper Hunter exited Hunter advised the defendant of the stop and asked him where he stated he not driven was He initiated Hunter testified that when he asked the defendant for his driver defendant indicated that he did an 1 The defendant Hunter followed him approached the passenger it resulted from red four door vehicle by activating his emergency lights shoulder of the interstate and as granted Hunter testified that he Parish when he observed the was alleged traffic violation illegal based upon invalid arrest he maintains The defendant also argues that the motion to suppress should have been because the warrantless search of his vehicle in argument in favor First the defendant argues his stopped him based illegal drug activity and s court erred the defendant references to the several inconsistencies between at the preliminary examination his testimony testimony at the motion to Trooper suppress hearing and the events documented on the videotape We note that these alleged inconsistencies are insignificant in that the videotape of the entire encounter was introduced into evidence and considered by the trial court Thus the trial court was aware of any inconsistencies and was not forced to decide the motion to suppress based solely upon Trooper Hunter s account of what transpired 3 As he television spoke with the defendant Trooper and set a chest of drawers inside the wrapped in plastic defendant did recognized mention and found he would be visiting observed inside the regarding his his sister for van van Trooper was After to Spanish inside his allow the search The defendant defendant a large a was that the Trooper Hunter also took a minute was and the he traveling was questioning mechanic belonged to him and Trooper According to Columbus asked the defendant if there was search the vehicle not Trooper The defendant Hunter asked the defendant if he could read responded affirmatively voluntarily signed a eventually stated subsequently consent to Trooper consent to van was The defendant stated there van luggage no the defendant in further city in Ohio Hunter testified that he the defendant with suspicious approximately eight days engaging what to Hunter asked the defendant for agreed about these items the defendant indicated he the defendant anything illegal kind of the defendant stated that the Hunter asked the defendant Trooper Hunter anything chairs The chest of drawers van found it some suspicious the fact that although the defendant stated that occupation ownership of the Hunter Trooper not Hunter noticed Trooper search form written consent to Hunter then entirely search form and in provided Spanish The Trooper Hunter began the search of the vehicle Trooper Hunter testified that at defendant appear defendant to have any no time during the encounter difficulty understanding English did the In fact the actively participated in the conversation speaking English the whole time Trooper as Paul Chamorro testified that he back up for Trooper Hunter Spanish he testified that he spoke did not have any was called to the scene Although Trooper Chamorro to the defendant in difficulty understanding 4 him English and of the was stop fluent in the defendant Trooper Chamorro further testified that the marIjuana once was found advised him of his Miranda specifically he rights placed the defendant under recall whether the Miranda rights not have been any The videotape reason of the for him to specifically stop reflects that the rights the Louisiana State Police is self explanatory were read the form to them The form tells you English and the form is Spanish an as version of the consent form equivalent translation of the in recited in both or English Spanish only languages search form used by don to explained everything about further testified that the document introduced rights consent to He Spanish English language there would recite the Trooper Chamorro further testified that the not recited in were he noted that because the defendant understood the and Chamorro could Although Trooper arrest w e it t have Trooper Chamorro defense exhibit 1 contained The an version of version of the form Spanish unsigned English signed by the defendant Pretextual Stop At the outset a traffic violation on somewhere argues this the note that the videotape when particular statement 2 Measured jurisprudence We note that the somewhere only that the traffic stop Trooper Hunter stated car was a said he was It with him got s z shows that the traffic stop clearly to pretext for to a was be here The defendant pretextual was the United States Constitution and Article I of the Louisiana Constitution protect state dispute that he committed resulting evidence should have been suppressed The Fourth Amendment seizures not The defendant argues that the real motive for the stop the driver in the other and thus the defendant does Instead he argues drug investigation revealed we dude a by this standard pause La C Cr P revealed that because 5 people against unreasonable searches and recognizes the right videotape S of Trooper the driver in him 5 art 215 1 a law Hunter the other as as federal and enforcement actually car well stated admitted that officer It they s to got to be were with temporarily detain and interrogate committing for has committed investigatory an right s commit to something specific facts knowledge the individual is about detention is determined under the had sufficient or person whom he a of each be free from a general police have probable v U S 517 U S standard is beliefs or a 806 810 p 4 La 3 12 01 vehicle serve as t he driver of a justify When not per 2d Ed 89 account Although they may to the curiam motor findings of fact had the court credibility 5 9 97 a trial court s ruling opportunity of their to testimony In the instant State v provide State Whren The 1996 the subjective and may serve of much investigation more objective basis an Waters 2000 0356 v Louisiana Revised Statutes vehicle shall not follow another prudent having due regard for the on a highway motion to suppress based upon observe the witnesses and State v Parfait 96 1814 p 1240 writ denied 97 1347 case to case weigh the relative 13 La La 10 31 97 App 1st v Smith 799 F 2d 704 wherein the Eleventh Circuit held that 6 a Cir 703 So 2d 20 support his argument that the vehicle stop unconstitutional the defendant cites U S federal on great weight is placed upon its detennination because the trial 693 So 2d 1232 a be 1269 135 L take into occupants than is reasonable and reviewing infringement an of such vehicle and the traffic upon and the condition of the speed 1986 1772 prelude 1056 must vehicle is reasonable where the a minor traffic violations 780 So 2d 1053 closely a and cause traffic violation has occurred officer the vehicle and its provides more detaining relatively even lawfully detaining to a stop that does one to 721 So 2d 1268 116 S Ct 1769 of the expectations to believe that purely objective serious offenses 32 81 A to cause often appear intended for the decision matter probable suspicion governmental interference Robertson 97 2960 pp 2 3 La 10 20 98 As Reasonable the basis of whether the officer of facts and circumstances to crime a less than case on reasonably suspects is 709 11 tl1 was Cir stop is valid only if under the circumstances same a reasonable officer would have made the stop in the absence of the invalid purpose In Whren Supreme Court rejected the would have the could have that the test Amendment s test in means as was one aimed contravention of celiain circumstances whatever the intent holding that the precedent allows certain actions subjective and intent adopted The Court reasoned reaching subjective at with reasonableness concern the United States utilized in Smith for Fourth Amendment reasonableness would have objective test however to through Fourth be taken in Whren 517 U S at 814 116 S Ct at 1775 The Louisiana 2000 0562 p 3 stated w above the over s Supreme La ithout 30 10 regard posted limit the vehicle for ubjective a to the suppress unconstitutionality defendant after traffic laws play should Trooper illegal drug activity is not not See State 05 So 2d 616 906 intent subjective an court in 3 772 Lopez Lopez the court cause basis WInen quoted from ordinary v respondent s speeding objective probable The role In probable cause So 2d at 92 it is clear that the defendant have been granted stop lacks merit him Hunter tailgating to pull stating Fourth quoting significant possessed v As Hardeman 622 to probable claim that the the upon Hunter alleged the stopped cause necessary to question the defendant about noted subjective intentions of the constitutional reasonableness of 2004 0760 Therefore 7 Trooper the previously determining based s another vehicle in violation of the Any subjective intent relevant in traffic stops 18 2 per curiam 2000 0562 at p foregoing having observed are no of the initial Thus s in State case 116 S Ct 1774 effectuate the traffic stop the officers trooper Lopez Whren 517 U S at 813 motion to the traffic violation analysis Considering 772 So 2d 90 92 gave the officer intentions Amendment 00 Court cited the Whren even pp 4 5 though it La App 1st Cir appears from the videotape that Trooper defendant because was Hunter may have involved in Trooper suspected prior illegal drug activity Hunter had an objective the stop that the nonetheless proper was stop the defendant for the to reason the stop to traffic violation Illegal Detention and Arrest or The defendant also appears asselis that the reasons cited by Trooper Hunter detention after the initial stop defendant further detention and Trooper Hunter prevent him from running he could not run he was An officer may officer has activity pertinent part motorist for a He argues that detain v Sokolow 490 U S 1 conducting an u s 1985 a traffic In v at some Sharpe See State detennining investigatory stop and position where investigative purposes if the 7 109 S Ct 1581 1585 stop an of a it is whether necessary to point it can can no 685 that if an to 8 a complete the too investigative 105 S Ct 1568 invalidate detention is appropriate detain longer be justified lengthy to examine whether the La as 1575 consent to search Bunnell 517 So 2d 439 441 v not states citation for the violation absent 470 U S 675 a officer may 104 activity An extensive detention valid traffic stop Cir 1987 lengthy watch him to placed in Supreme Court has recognized stop continues indefinitely a result of the The a was person for a of additional criminal The United States after a ChamolTo period of time longer than reasonably investigative stop as the detention Louisiana Code of Criminal Procedure article 215 1 D suspicion L Ed 2d 605 justify suspicion supported by articulable facts that criminal U S that in He justification for the continued alTested i f he investigation of the violation and issuance reasonable illegally detained alTested reasonable 1989 illegally was was to instructing Trooper temporarily may be afoot L Ed 2d 1 in a s as insufficient were that he asserts that he to argue an 84 even App 1st be considered as police diligently pursued a of means suspicions quickly cautioned whether the police the court should The stopped Sharpe reviewing a are not that investigation 470 U S in acting a of the traffic videotape defendant for returning to their The court 105 S Ct at 1575 swiftly developing case approximately dispel or take care to consider situation and in such cases Id reflects that the defendant 6 57 Trooper a m approximately three minutes until 7 00 Hunter was spoke a m before his vehicle with the defendant s identification infonnation Three minutes later at 7 03 a m Trooper Hunter returned the defendant information and advised the defendant the traffic to stop request was to concluded consent to s identification back off of the other vehicles Thereafter search the defendant minutes after the initial stop the defendant seven confirm assessment to stop in this for the traffic violation at proceeded to indulge in unrealistic second guessing with the point 686 at making this court likely was Trooper s At 7 04 van granted Hunter consent to At this promptly a m only search the vehicle Contrary defendant Hunter was to not the defendant detained for diligently pursued length was the of investigation asked to consent to into the traffic violation the degree consent to search the search So 2d 39 42 van that the We find that was suspicion See State per curiam his to ask for Strange v was stop encounter to the search of of reasonable the that reflects likely Trooper to confirm or The time period of seven minutes for the traffic stop when the defendant consented need any evidence of time of detention to exceed the scope of the initial investigation 876 assertions lengthy period a means dispel his suspicions quickly before the defendant a s 2004 0273 9 p extended Hunter did not Trooper and receive arrest unreasonable immediately Although approximately between the initial traffic stop and the defendant s an At the conclusion of the was van not the defendant 6 La 45 minutes most of s 5 14 04 elapsed that time was consumed by the from which the drawers marijuana shows that such that the significant defendant was not search of the thorough very discovered was a thorough refuse handcuffed and or the defendant signed by to consent to any 3 any time to the circumstances indicate arrest rather than State place when v a v no Trooper run He marijuana intent an at the to was effect the s nervous The vehicle The defendant The 554 was an could search to refuse consent The right by revoking his Thus we find no detained An officer tells an on was occurs the liberty when of an accused he is under 1982 not free 1877 illegally was arrest La 1333 100 S Ct 1870 An arrest takes to leave See u s 64 L Ed 2d 497 1980 of the stop reflects that the statement the made shortly after Trooper Trooper Chamorro statement consent to consent to search at extended restraint 418 So 2d 1330 videotape This intensify not notified of his was marijuana identification information and Hunter stated to it is discovered was unlawfully an time precise Commodore case police rights during the of the discovery defendant takes issue with s in the reasonable person would feel that he In the instant Furthermore necessary merit in the defendant s claim that he Mendenhall 446 U S 544 defendant placed of the chest of structure specifically advised that the defendant these claim that he s We likewise find accused was find that defendant we not to exercise merit in the defendant prior search restrict the scope of the search or defendant chose arrested inside the The location contents search and that he could revoke his Accordingly and consent and its physical intrusiveness of the stop did remained unrestrained until after the search form van was went over to Hunter his vehicle watch him make made at Trooper gathered the sure Hunter 3 s to check it he don t sic patrol vehicle We note that the English version of the consent to search form reads n o promise threat coercion of any kind has been made against me the Louisiana Office of State Police and I by have been informed by the above named State Police Officer that I may refuse to consent to any search and that I may revoke my consent to search at any time Chamorro testified that or Trooper the Spanish version ofthe form contains an equivalent provision 10 while the defendant the defendant statement if the made defendant to s to suppress was Thus it is vehicle own was even made More was the presence hearing was that free not to the during free at not under arrest to not leave all times prior and free was at that encounter could statement not leave the to because it have Trooper to the However was not even made possibly caused the Hunter testified at the discovery of the marijuana leave to Search noted previously Article I 5 of the Louisiana Constitution 9 burden of proof warrant La exception to the consent was be determined See State S Ct v a hearing art Cir 6 29 98 on a the establishing 703 D motion the State bears the to suppress admissibility of evidence seized without A valid consent search is given freely and voluntarily by As illegal protect people against unreasonable requirement but the burden is a well 467 So 2d 503 88 L Ed 2d 246 as 518 upon the State to prove that V oluntariness is La 1985 well the issue of voluntariness 1985 a question cert of fact to the State v surrounding Ford case denied 474 U S 911 The trier of fact may as a recognized the trial court under the facts and circumstances of each of the witnesses determining consider the circumstances 97 2019 p 7 La in App 1st 713 So 2d 1214 1218 In the instant consent to In warrant Wilson 281 credibility in C CrP the was the Fourth Amendment to the United States Constitution and searches and seizures was importantly point The defendant also argues the search of his vehicle 106 unlikely that during the initial detention in connection with the traffic believe that he the defendant statement had been made later in the defendant Consent that the Thus the defendant statement motion still seated inside his was aware was violation was case it is undisputed the search of his vehicle invalid because the consent to that the defendant The defendant search form 11 alleges his provided written consent to search provided by Trooper Hunter was not explained written to him in consent whether he Spanish Initially sign this find the defendant s claims that we sign this asking Trooper Hunter asked for van consent to search He objections form was the facts in this case consent defendant sufficiently he understand freely as set forth above it copy of the a Hunter instructed sign right there to to allege Voicing show that his or specifically allege that he did was not force signature promise clearly disclose the not explained understand the abuse its discretion in note we finding 12 to no on a used to case the written On the contrary giving of of the stop that the to search free and a He appeared the van and that while the defendant him in contents of the was In this spoke the English language Furthermore form no the contrary Trooper Hunter when he asked for permission en or anything illegal produced viewing the videotape understood and gave his consent not The Once the defendant Hunter testified that tending It is clear from consent did handed Trooper Hunter then proceeded to conduct Trooper evidence complains that the court Hunter the result of any form of coercion voluntary to no simply asked the defendant if he could read and defendant does not defendant introduced Hunter if the defendant had agreed with Hunter to search his vehicle signature Trooper unsupported by the record Trooper not signed the form signifying that he voluntarily authorized search of defendant s vehicle consent of the contents responded affirmatively Trooper the form and if he the defendant obtain the validity Trooper Hunter did consent to search specifically When the defendant to read Trooper form be to indicated that he would allow the search him the approached him and inquired The defendant claims of the stop reflects that after Spanish Hunter explanation of the document andor its him the form and stated in his Trooper to spoke Spanish When he responded affinnatively the defendant claims any further videotape support of his challenge the defendant claims Trooper Hunter replied provide In Spanish he does not the form consent to search The trial was valid We find suppress This For the no error in the trial court assignment foregoing s denial of the defendant s motion to of error lacks merit reasons the defendant s conviction and affirmed CONVICTION AND SENTENCE AFFIRMED 13 sentence are
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