State Of Louisiana VS Louis Legendre (2008KA2486 Rehearing Application)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 KA 2486 STATE OF LOUISIANA VERSUS LOUIS LEGENDRE Judgment On Rendered OCT 2 7 2009 Appeal from the Twenty First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Docket No 504195 Honorable Elizabeth P Wolfe Judge Presiding Scott Perrilloux Counsel for District State of Louisiana Attorney Appellee Leanne Malnar Patricia Parker Assistant District Attorneys Amite Louisiana Michael L Thiel Counsel for Defendant Summer Duhe Louis Appellant Legendre Amite Louisiana BEFORE f p 11 6 DOWNING GAIDRY AND McCLENDON JJ J C o S rMf McCLENDON J Legendre The defendant Louis count of possession of 28 grams violation of LSA R S 4O 967 F 1 a to reserving his right 1970 probation parole denied to State v trial court erred in guilty and filed not was on He 1976 La the motion to suppress s U 25 37 91 S Ct 160 167 27 at hard labor without benefit of sentenced to six years suspension of sentence a motion to a Crosby 338 So 2d 584 Alford 400 v one Thereafter he withdrew his former challenge the trial court s ruling He or pled He was and pursuant to North Carolina L Ed 2d 162 1 bill of information with but less than 200 grams of cocaine or more suppress evidence but the motion plea and pled guilty pursuant charged by was now appeals contending that the For the denying the motion to suppress affirm the conviction vacate the sentence and remand for following reasons we resentencing FACTS On October 28 2005 Louisiana State stop for improper lane usage of Lynx Trivuce2 was a vehicle driven a on passenger 1 12 in suddenly changed lanes almost causing Chamorro asked the defendant to license The defendant had asked where he was a was was Trooper step out of his vehicle and produce his driver s international driver s license and stated he was was going The defendant initially coming from Texas and going to Mississippi He then stated that he going to Jackson Mississippi to visit his grandmother and then to New York owned was working in Texas for by his friend and was staying in defendant claimed Trivuce was also Lynx Trivuce was does not reflect the a working indicated that he had rented the vehicle 2 The defendant had collision with another vehicle coming from and where he The defendant claimed he 1 Parish traffic in which by the defendant and Tangipahoa a Trooper Chamorro advised the defendant of his traffic violation and from Trinidad stated he an Trooper Chamorro conducted in the same location charged by the same bill of information disposition of the charge against Trivuce The record contains multiple spellings of Trivuce s 2 communication business hotel at his friend s expense He showed bill of information a name signs of The defendant nervousness with the same offense We use the The spelling The record contained in the Trooper Chamorro approached Trivuce and asked for the rental agreement The rental vehicle agreement indicated someone other than the defendant had rented the The defendant then claimed that his added him as an secretary had rented the vehicle and additional driver Trivuce indicated he and the defendant were traveling to Mississippi to visit family but did not know exactly where in Mississippi they initially claimed he working for an oil working not was or on anything illegal in the vehicle The defendant stated consent to search were another unit approximately a including marijuana cocaine or and Trooper two miles away Trooper Chamorro then asked the defendant if he responded was and thirty days off Trooper Chamorro requested assistance from Darryl Davis and his police dog Spike who Trivuce going He then stated he going to school working thirty days rig were carrying was methamphetamines Trooper Chamorro asked the defendant if he would No search of the vehicle The defendant stated Why do you want to and denied consent to search Trooper Davis ordered Trivuce to exit the vehicle and allowed Spike to sniff around the vehicle trunk of the vehicle their Spike alerted consistent with the presence of narcotics to the Trooper Chamorro then advised the defendant and Trivuce of Miranda3 rights and they indicated they understood those rights Chamorro asked the defendant and Trivuce what was Trooper in the trunk of the vehicle They did not respond Trooper Chamorro opened the trunk and discovered eleven kilograms of cocaine in a He then arrested the defendant and Trivuce bag MOTION TO SUPPRESS In his sole assignment of vehicle violated his error rights under the Fourth Amendment because he longer than reasonably necessary certainly long the defendant argues that the search of his after any suspicions was to effectuate the purpose of the traffic were detained stop and dispelled The Fourth Amendment to the United States Constitution and Article I of the Louisiana Constitution 3 Miranda v Arizona 384 5 protect persons against unreasonable searches and U S 436 86 S Ct 1602 3 16 L Ed 2d 694 1966 use adversely affected may A defendant seizures at the trial on the merits LSA C Cr P to La p 4 01 0908 La 4 21 03 02 2989 Terry unconstitutionally obtained motion to suppress the evidence on a opportunity to State weigh the credibility of their testimony 835 So 2d 703 1 Or 11 8 02 App 392 U S police officer may briefly seize 706 writ denied a 1 20 L Ed 2d 889 88 S Ct 1868 person if the officer has 1968 engaged in criminal conduct or is wanted for Code of Criminal Procedure article 215 1 A suspicion of crime allows is suspicion a insufficient limited investigation of to interrogation is investigative 6 9 06 the a general beliefs or a cause purely objective serious offenses 4 even lawfully detaining La 3 12 01 one relatively an the However reasonable person interrogation stop a an even an though the 955 So 2d 684 traffic violation has occurred serve provide State an The subjective and may prelude to the investigation of much occupants 1 Cir automobile is reasonable where minor traffic violations 1056 Louisiana officer s reasonable that does not take into account the the vehicle and its 780 So 2d 1053 laws of this state as is about Caples 05 2517 pp 10 11 La App to believe that serve During detention of than an expectations of the detaining officer Although they may often appear intended to for v matter the decision to police have probable standard is State that 154 writ denied 06 2466 La 4 27 07 938 So 2d 147 As custodial justify a or past criminal acts provides the objectively reasonable an suspicion supported by specific and articulable facts that the person is to be v investigatory stop recognized by the United States Supreme Ohio v ruling was 841 So 2d 791 Pursuant to the Court in s to suppress any evidence from because the district court had the great weight observe the witnesses and Jones ground that it A trial court art 703 A is entitled the on move more objective basis Waters 00 0356 p v per curiam alleged violator of any provision of the officer may not detain a motorist for a motor vehicle period of time longer reasonably necessary to complete the investigation of the violation and issuance of criminal a citation for the violation activity absent reasonable LSA C Cr P art 215 1 0 4 suspicion of additional inquiry into whether Given the fact intensive nature of the constitutes and a investigatory stop by its nature an citizen based extended restraint on on a brief encounter between the reasonable suspicion of criminal activity liberty which requires courts have been unable to develop a a detention a or an police arrest greater showing of probable an cause bright line test to determine when police citizen encounters exceed the bounds of mere Because there is Terry stops no scientifically precise formula that enables courts to distinguish between valid investigatory stops and other detentions that the law deems sufficiently coercive to require probable a court inquiring into the nature of whether the police must examine was cause likely to confirm diligently pursued United States 1575 84 L Ed 2d 605 this assessment should take care 1985 guessing Id 798 So 2d 947 949 State police A court are the court should not Miller 00 1657 v was Sharpe 470 U S 675 686 citations omitted cases filed a motion general In connection with the motion confession of investigation that pp 2 3 making acting in a indulge in La 10 26 01 per curiam defendant The v to consider whether the swiftly developing situation and in such unrealistic second forcible detention dispel their suspicions quickly during which time it or necessary to detain the defendant 105 S Ct 1568 a means a to suppress evidence and or argued the cocaine had to be he suppressed because Trooper Chamorro detained him longer than necessary to The court denied the motion to dispel Trooper Chamorro s reasonable suspicions suppress There was no error of the vehicle driven in the denial of the motion to suppress by the defendant that he had violated LSA s R 32 58 116 S Ct 1769 135 L Ed 2d 89 were aroused United States 517 v Thereafter cause stop to believe s U 806 Trooper Chamorro s suspicions by the inconsistent statements concerning who had rented the s nervousness and Trivuce supported by probable See Whren 1996 vehicle the inconsistent statements defendant was The traffic concerning Trivuce s employment and by the Trooper Chamorro neither of whom were was outnumbered by the defendant restrained in any way 5 Understandably he It is requested backup Thereafter the that inconsequential dog quickly alerted K 9 unit arrived to assist him a to the presence of narcotics in the trunk of the vehicle that the defendant had been driving of Trooper Chamorro diligently pursued his investigation and the duration the stop did not transform the encounter into following the stop were stop in the first place reasonably responsive as to the circumstances information he augmented by See Miller 00 1657 at p 3 798 So 2d at 950 defendant s detention did not intensify as His actions de facto arrest a The justifying the gleaned during which nor the duration of the stop expanded to handcuffed restrained or Neither Trooper Chamorro had detaining the a means The suspicions quickly itself constitute probable cause vehicle 96 2650 on This of the vehicle on and at the moment the to search the car s or Spike to dispel the officer s exterior surfaces did not dog alerted the officers had Exigent circumstances arising from the detention the open road excused the lack of 9 19 97 5 objective and articulable basis for investigation likely to confirm dog s sniff test search a p 4 La de facto arrest to maintain the status quo for the few minutes it took car sniff the vehicle an a circumstances See Miller 00 1657 at p place until the discovery of the cocaine 798 So 2d at 950 a were might have suggested during the lengthening delay that had taken of his passenger stop intrusiveness of the physical accommodate Trooper Chamorro s growing suspicions of criminal activity the defendant the a 699 So 2d 879 881 82 warrant See State v Kalie per curiam assignment of error is without merit REVIEW FOR ERROR Initially 920 which we note that our review for provides that the only matters designated in the assignments of error error is pursuant to LSA C Cr P to be considered on and error appeal that is discoverable art are errors by a mere inspection of the pleadings and proceedings and without inspection of the evidence LSA C Cr P art 920 2 The trial court denied the defendant in this matter However parole LSA RS 40 967 G 6 for the entire six year sentence authorized the denial of parole for only the minimum sentence provided under LSA R S 40 967 F Accordingly years Additionally of not less than dollars See LSA we we vacate the sentence and remand for note that the trial court failed to fifty thousand dollars s R 40 967 F CONVICTION 1 nor more than which was five resentencing impose the mandatory fine one hundred fifty thousand a AFFIRMED SENTENCE REMANDED FOR RESENTENCING 7 VACATED AND MATTER
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