State Of Louisiana VS Joseph Lavergne
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 200 KA 0044 STATE OF LOUISIANA VERSUS JOSEPH LAVERGNE Judgment Rendered May W Appealed 2 2008 from the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge State of Louisiana Trial Court Number 09 03 0149 @ Honorable Richard Anderson Moreau Doul Sonya Cardia Porter Baton Rouge Attorneys Judge Presiding for Appellee State of Louisiana LA Rodney Messina Baton Rouge LA BEFORE Attorney for Defendant Appellant Joseph Lavergne WHIPPLE GUIDRY AND HUGHES JJ WHIPPLE J The defendant driving while intoxicated originally pled not evidence and oral motion as Joseph Lavergne third offense DWI Following statements a defendant See State to suppress sentenced was to a imprisonment at and pled guilty guilty plea the district court or which was suspension of supervised probation for La ordered s denial of 1976 The The court to be served The trial sentence three years physical denied the hard labor for three years without benefit of on not the He court the trial appeal sentence probation parole to suppress Crosby 338 So 2d 584 v suspended all but thirty days of the placed the defendant motion hearing to of information with violation of LSA R S 14 98 withdrew his subsequently charged The defendant reserved his right his motion a The defendant filed guilty The defendant charged by bill was subject court various to general and special conditions including requirements that the defendant undergo a substance abuse evaluation treatment facility and physician and defendant to pay 1 court a approved inpatient substance abuse treatment outpatient recommended undergo subsequent home incarceration assignment of motion any attend a error to suppress Whether a 2 000 00 fine The defendant the defendant The now challenges the district The defendant presents the following court by the treating also ordered the appeals court s In single a ruling on issues for review Texas volunteer fireman who had activated emergency on his vehicle who was reasonably believed to be a and sirens lights police officer was acting stopped another vehicle 2 Whether person seizing under the defendant and whether such s the color of state law when he car keys constituted seizure a was lawful a in seizure of his lieu of the circumstances 3 Whether private citizen a suspected DWI offense Finding no a merit in the assigned can lawfully conduct error we 2 affirm a stop and seizure for his FACTS Because the defendant at introduced at the was a traveling vehicle hearing February On The trial developed following facts on the defendant s 14 2003 police follow the vehicle which the defendant his Eventually exited his vehicle and to volunteer a driven was Martins approached by a vehicle to an individual firefighter not return testimony from Texas stop s subsequently identified as vehicle to the defendant keys s vehicle s to Once the defendant the defendant a Martins continued the sirens and strobe lights equipped stopped Martins After brief questioning urinate When the defendant relieve himself Martins removed the Martins did the passenger in Martins by Martins the defendant indicated that he needed walked away from Rouge Louisiana when he observed engaged a fully were never to suppress report the reckless driving and conducted personal vehicle motion Laura Hermes driving erratically gleaned were Peter Martins Interstate lOin Baton on contacted the local on pled guilty the facts of the offense keys from the defendant s until he observed the police nearby Louisiana State civilian stop Once Henson arrived statement regarding the field scene Trooper Dwight his observations sobriety tests was dispatched scene Martins Henson on the Martins then left the the defendant was to provided scene arrested and investigate the a written Following charged on with D W I third offense ARGUMENT The defendant first argues that Martins and sirens vehicle was 1 by activating his emergency lights acting under the color of state law when he stopped the defendant He asserts that since he enforcement official Martins s reasonably believed that Martins actions should be attributable defendant further argues that the seizure of his person 3 by to was the state a s law The Martins violated the Fourth Amendment of the United States Constitution argues that the trial court citizen and not a state was in its correct l the In response finding that Martins acted as a state private actor The Fourth Amendment of the United States Constitution protects against t he right of unreasonable searches and seizures the be to people secure the by government It provides in their persons houses unreasonable searches and seizures shall seizure in his by private citizen acting a prohibited by the by government agents 104 s Ct 1652 7 6 02 La defendant was See United States 1656 80 L Ed 2d 85 App La 1 st Cir 6 22 01 So 817 2d 1145 Fourth Amendment s as private citizen a 1984 only protects against Jacobsen 466 U S v see is not also State v 109 113 Jackson 2000 809 So 2d 198 200 writ denied 2001 1990 Thus rights before can violated were we we determine whether the must determine if there government action the Although Fourth Amendment governmental intrusion have acted as agents of the government individual was government to private 1 are 2 as a whether the whether the lThe acted at the defendant does not We therefore consider only designed or as can protect against be considered to determining whether an instrument an or agent of the government knew of and acquiesced in the private party s or to purpose in further its own request of the government allege to private citizens Useful criteria in private party assist law enforcement agents actor is in certain situations acting intrusive conduct was capacity against A search andor be violated not Fourth Amendment because the amendment actions 2202 p 2 and effects papers that a conducting ends and 3 4 the search whether the whether the violation of the Louisiana Constitution occurred whether the defendant s violated 4 rights under the Fourth Amendment were government offered the private F 3d 1071 7th 1074 Recognizing actor a See United States reward Cir 2006 the need for governmental action invoke the to or as contention a government agent in conducting the traffic stop condoned Martins Applying no error court s to the facts of this case we conclusion that Martins acted the defendant s contention to as a not siren and emergency a automatically testified that he his convert was never report the incident he prior to primary but activating his Martins acted erratic lights an to stop the defendant never was going to was specifically vehicle but he did so on Hermes called 911 to anyone from law enforcement not to happen He stated that his assist law enforcement any second although he utilized not by police did Martins prevent the defendant from fatally injuring his unmarked vehicle he did evidence that possession and used lights and conducting the stop stopping the defendant accident that s although personally spoke with Martins testified that driving on directed emergency motivation for prevent to to no Martins government actions his actions to private citizen in this lights items customarily Martins further testified that initiative own thereby disagree and find the contrary there is Martins acted under the instruction of law enforcement utilization of police actions the relevant criteria in the trial Despite case intrusive s of and aware were a The defendant assisting law enforcement that the law enforcement officials asserts of support of this In the defendant asserts that Martins held himself out to be officer and acted with the intention of further application under the color of the Fourth Amendment the defendant contends Martins acted law Ginglen 467 v a Specifically someone with his siren and emergency tell the defendant that he was a police for public officer Martins safety s explanation and the fact that he of the motivation for his actions never spoke with 5 or was directed concern by law enforcement supports the trial government court s conclusion that he acted defendant Trooper action occurred when governmental the Henson stopped when he agent defendant in connection with the citizen governmental Absent any tests Fourth Amendment does not private citizen and as a s report and vehicle s The the field as a first questioned arrived performed not the sobriety action in connection with the initial stop the apply This argument lacks merit ARGUMENT argument the defendant In his second by Martins a private Fourth Amendment does not time Trooper However defendant is not or Because Fourth Amendment Henson arrived if Martins even s on actions person said seizure s prohibited by the scene were to need unlawfully seized in violation of the the Fourth Amendment have held that there we applicability we was authority state previous argument protect against private trespasses government action and that he asserts citizen cloaked with As noted in the 2 not in this prior to the address this argument be considered by Martins in his capacity case was no as seizure a a of the private individual the Fourth Amendment This argument also lacks merit 3 ARGUMENT In his the defendant submits the alternative third and final argument contention that LSA C CrP lawfully conduct a art 214 stop and seizure for defendant argues that Martins because DWI is does generally a s not give a private citizen the authority suspected DWI offense a actions amounted to an Specifically illegal citizen by 2 a Again private the arrest misdemeanor Louisiana Code of Criminal Procedure article 214 allows the person s to arrest of person when the person arrested has committed the defendant does not argue that Martins Louisiana Constitution 6 s actions violated his rights a a felony under the whether in of the presence of the person out or Jackson 584 So 2d 266 268 1991 In this authority effect to constitutes case we sufficient to justify foreseeable that human life case freeway to at According going to to happen In it is a time as a arrest for a DWI e As the Martins was or runway of from the defendant on s railroad added Emphasis one navigable wherein it is airport an During the was erratically edge of the road completely The defendant at that time their breaks erratic a aggravated obstruction of railway any the interstate slamming the motion to suppress private citizen driving As the trial to s erratic driving take evasive to avoid was an We further find that at the obstruction of only that force which court previously noted hearing a collision accident that was a highway was of we specifically found that agree with this despite any finding suspicions of reflects that the defendant did felony which authorized Martins aggravated Martins used circumstances criminally negligent placing of or on going on supported by the record commit citizen has the driving witnessed by explained that the defendant impairment the evidence adduced fact La any second denying Martins acted as Martins some misdemeanor i the other side of the road avoid him to act any caused drivers of other vehicles maneuvers a might be endangered Martins swerving multiple lanes the the intentional as highway thoroughfare hearing in this private offense that under Further LSA R S 14 96 defines performance of or a 585 So 2d 577 v stop for the felony offense of aggravated obstruction of a commerce waterway road across an in its brief the erratic notes highway of anything reach the issue of whether stop by another for highway of commerce a not See State arrest App 15t Cir writ denied La felony and under others is merely a correctly state a need making the a private commerce person to in make his See LSA R S 14 96 necessary to detain the defendant until the 7 police arrived and was to insure the The fact that the defendant safety of other drivers subsequently charged with driving while intoxicated is of no moment This argument also lacks merit REVIEW FOR ERROR In accordance with our review for pursuant error to LSA C CrP art 920 2 erred in imposing the period of probation After suspending all but thirty days of the three year sentence note we of as follows imprisonment years on The record reflects that the trial the trial court ordered that the defendant portion of the division of the the placed limited of imprisonment were of sentence prejudicial pursuant to State So 2d 112 2008 court 124 125 en WL period of time equal we provides that to the Because on Instead years i the e not have probation should App error is to the 1st Cir 12 28 06 952 So 2d will correct the sentence under LSA C Cr P amend the sentence to be two years and eleven months The been inherently La 2 22 08 writ denied 2007 0130 of have been period of time equal Because this imprisonment remainder thirty days of the suspended the defendant should Price 2005 2514 La v banc we Accordingly period shall a years and eleven months to two remainder of the 882 A not probation for the full three on a suspended the offender shall be placed imprisonment added Emphasis of I period of three Department of Public Safety and Corrections probation and parole for sentence sentence is sentence supervised probation with serve a However LSA RS 14 98 D supervised probation i f any court art provide that the probationary case is remanded to the district for correction ofthe minutes and the commitment order if necessary For the foregoing sentence is amended and CONVICTION reasons as the defendant s conviction is affirmed The amended affirmed SENTENCE AFFIRMED AFFIRMED AS AMENDED AMENDED AND REMANDED TO DISTRICT COURT FOR CORRECTION OF MINUTES AND COMMITMENT ORDER 8
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