State Of Louisiana VS Kelvin M. Doss
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 0452 STATE OF LOUISIANA VERSUS KELVIN M DOSS Judgment Rendered September 10 2010 On Appeal from the 22nd Judicial District Court in and for the Parish of St Tammany State of Louisiana District Court Nos 424255 and 425842 The Honorable August J Hand Judge Presiding Frank Sloan Mandeville La Counsel for Defendant Appellant Patrick D Washington Walter P Reed Counsel for Appellee District Attorney Covington La Kathryn W Landry Baton Rouge La State of Louisiana BEFORE CARTER C GAIDRY AND WELCH JJ J CARTER C J The defendant Kelvin M Doss was charged by bill of information with possession of cocaine a violation of La R 40 The defendant S 967 initially entered a plea of not guilty The trial court denied the defendant s motion to suppress the evidence and his confession In an unpublished decision this court denied the defendant supervisory writ application s seeking review of the trial court ruling State v Doss 20090047 La s App 1 Cir 1 unpublished The defendant withdrew his plea and 09 12 entered a plea of guilty pursuant to State v Crosby 338 So 584 La 2d 1976 reserving the right to appeal the denial of his motion to suppress The defendant was sentenced to five years imprisonment at hard labor The sentence was suspended and the defendant was placed on supervised probation for a period of five years with the following conditions payment of a 500 fine performance of 60 days of community service 00 submission to random drug screening and completion of a courtapproved drug or substance abuse program The defendant appeals challenging the trial court ruling on his s motion to suppress the evidence and confession For the following reasons we affirm the conviction and sentence I The defendant originally was charged by bill of information 425255 with distribution of cocaine The State amended the bill of information to charge him with possession of cocaine P STATEMENT OF FACTS In accordance with testimony presented at the motion to suppress hearing on or about July 21 2006 Detective Emile Lobrano Sergeant Brad Rummel Lieutenant Joe Perconi and Detective Keith Dolin of the St Tammany Parish Sheriff office went to the defendant residence as a part s s of the investigation of a quadruple homicide that occurred in the Slidell area A search of the residence led to the recovery and seizure of cocaine The defendant was arrested and ultimately pled guilty to possession of cocaine ASSIGNMENT OF ERROR In the sole assignment of error the defendant challenges the trial s court ruling on his motion to suppress the evidence and confession The police did not have a warrant The defendant emphasizes that he was not advised of his Miranda rights until after his confession and the discovery of cocaine The defendant contends that the arrival of four armed officers at his residence led him to believe that they were there to investigate suspected drug activity and that he was not free to leave He argues that the presence of the officers in his living room was an intimidating show of force and that he was under arrest without probable cause prior to Detective Lobrano questioning him about narcotics The defendant contends the subsequent search of the residence yielded fruit of a poisonous tree and should have been suppressed along with his statement The Fourth Amendment to the United States Constitution and Article I 5 of the Louisiana Constitution protect people against unreasonable searches and seizures A search conducted without a warrant is presumably unreasonable unless justified by one of the specifically established 3 exceptions Schneckloth v Bustamonte 412 U 218 219 93 S 2041 S Ct 2043 36 L 854 1973 State v Farber 446 So 1376 1378 La 2d Ed 2d App 1 st Cir writ denied 449 So 1356 La 1984 A valid consent 2d search is a well recognized exception to the warrant requirement but the State has the burden of proving that the consent was valid in that it was freely and voluntarily given Bumper v North Carolina 391 U 543 S 548 88 S 1788 1792 20 L 797 1968 State v Smith 433 So Ct 2d Ed 2d 688 693 La 1983 An oral consent to search is sufficient a written consent is not required State v Ossey 446 So 280 287 n La cert 2d 6 denied 469 U 916 105 S 293 83 L 228 1984 State v S Ct 2d Ed Parfait 96 1814 La App 1 Cir 5 693 So 1232 1240 writ 97 9 2d denied 97 1347 La 10 703 So 20 Voluntariness is a question 97 31 2d of fact to be determined by the trial judge under the facts and circumstances surrounding each case Ossey 446 So at 287 When a trial court denies 2d a motion to suppress factual and credibility determinations should not be reversed unless there is no evidence to support those findings State v Hunt 09 1589 La 12 25 So 746 751 However a trial court 09 1 3d s legal findings are subject to a de novo standard of review Hunt 25 So at 3d 751 Detective Lobrano was assigned to the narcotics division of the s sheriff office at the time of the offense but was assisting with the investigation of the homicides of two adults and two juveniles Detective Lobrano specifically testified that his job was to obtain intelligence to provide leads for the main investigators to establish suspects or witnesses CI Based on the defendant name being raised in reference to occurrences s within the area the officers were interested in speaking with him The officers arrived at the defendant residence in the afternoon s Upon arrival the officers exited their vehicle approached the residence and knocked on the door Someone from inside yelled for them to come inside The door to the residence was unlocked One of the officers advised they were from the sheriff office s The defendant was observed on the sofa Detective Lobrano asked the defendant if anyone else was present in the home and the defendant stated no and told the officers to take a look Sergeant Rummel stayed with the defendant in the den area while Detective Lobrano walked through the kitchen into the back bedroom Detective Lobrano observed a shotgun on the bed but no one was in the back of the residence Detective Lobrano noted the presence of three or four cellular telephones in the entertainment center Based on his experience he suspected that one telephone was for personal use while another usually an inexpensive throwaway phone with a minimal number of calling minutes was for conducting illegal drugs transactions Detective Lobrano also noted a plastic bag with the bottom torn out in the kitchen area Due to his experience Detective Lobrano was aware that plastic bags are often ripped and filled with marijuana cocaine crack or heroin by illegal drug dealers Detective Lobrano testified that the defendant was free to come and go as he pleased and that his movement was not restricted Based on his observations Detective Lobrano asked the defendant if he had any drugs in the residence The defendant removed himself from the sofa pointed toward the sofa and stated that Dreds set him up The defendant further stated that Dreds had just dropped off some cocaine and the defendant agreed to hide it for him under the sofa cushion The defendant granted the detective verbal request for consent to s search the residence Detective Lobrano specifically testified that the defendant stated Fine no problem and gestured back to the sofa cushion regarding the request for consent to search Detective Lobrano located a plastic baggy containing approximately seven grams of cocaine under the sofa cushion The defendant was advised of his Miranda rights and placed under arrest During cross examination Detective Lobrano confirmed that the defendant was previously suspected of drug activity in a July 1 2006 investigation During redirect examination Detective Lobrano stated that to the best of his knowledge he did not speak to or communicate with the defendant at any time regarding the previous investigation Knock and talk is a law enforcement tactic where police officers who possess information that they believe warrants further investigation but that is insufficient to constitute probable cause for a search warrant approach a person suspected of engaging in illegal activity at the person s residence identify themselves as police officers and request consent to search for the suspected illegality or illicit items State v Warren 05 2248 La 2 949 So 1215 1221 If successful the tactic allows police 07 22 2d officers lacking probable cause to gain access to a house and conduct a search Warren 949 So at 1221 The knock and talk procedure does 2d not per se violate the Fourth Amendment Warren 949 So at 1222 2d The prevailing rule is that absent a clear expression by the owner to the 0 contrary police officers in the course of their official business are permitted to approach a person dwelling and seek permission to question an s occupant Warren 949 So at 1222 Knocking on a door is a request for 2d permission to speak to the occupant Warren 949 So at 1222 2d There is a clear distinction between the police detaining a suspect on the street as authorized by Article 215 of the Code of Criminal Procedure 1 and the police knocking on a suspect door State v Sanders 374 So s 2d 1 l 86 1188 La 1979 When stopped on the street a suspect has no choice but to submit to the authority of the police Sanders 374 So at 1188 2d However when a door is opened in response to a knock it is the consent of the occupant to confront the caller there is no compulsion force or coercion involved Sanders 374 So at 1188 2d It is well settled that for a confession or inculpatory statement to be admissible into evidence the State must affirmatively show that it was freely and voluntarily given without influence of fear duress intimidation menaces threats inducements or promises La R S 15 Additionally 451 the State must show that an accused who makes a statement or confession during custodial interrogation was first advised of his Miranda rights Miranda v Arizona 384 U 436 444 86 S 1602 1612 16 L S Ct 2d Ed 694 1966 State v Caples 05 2517 La App 1 Cir 6 938 So 06 9 2d 147 153 writ denied 062466 La 4 955 So 684 The obligation 07 27 2d 2 In Miranda the Supreme Court promulgated a set of safeguards to protect the therein delineated constitutional rights of persons subject to custodial police interrogation The warnings must inform the person in custody that he has the right to remain silent that any statement he does make may be used as evidence against him and that he has a right to the presence of an attorney either retained or appointed Miranda 384 U at 444 86 S at 1612 S Ct 7 to provide Miranda warnings attaches only when a person is questioned by law enforcement after he has been taken into custody or otherwise deprived of his freedom of action in any significant way Miranda 384 U at 444 S 86 S at 1612 State v Payne 01 3196 La 12 833 So 927 Ct 02 4 2d 934 Custody is decided by two distinct inquiries an objective assessment of the circumstances surrounding the interrogation to determine whether there is a formal arrest or restraint on freedom of the degree associated with formal arrest and second an evaluation of how a reasonable person in the position of the interviewee would gauge the breadth of his freedom of action See Stansbury v California 511 U 318 322325 114 S S Ct 1526 15281530 128 L 293 1994 per curiam As such Miranda 2d Ed warnings are not required when the law officer is making a general onthe scene investigation to determine whether there has been the commission of a crime and if so by whom State v Davis 448 So 645 651 La 1984 2d A general and pre custodial inquiry at the home of a defendant does not require Miranda warnings State v Hodges 349 So 250 257 La 2d 1977 cert denied 434 U 1074 98 S 1262 55 L 779 1978 S Ct 2d Ed We conclude that the defendant voluntary statements inside his s home were part of a general inquiry and pre custodial questioning requiring no Miranda warnings Because the defendant was not in custody the officers were not obliged to provide Miranda warnings The cocaine was recovered after the defendant allowed the police to enter the trailer and voluntarily consented to a search of the trailer The defendant freedom of s movement was not infringed upon and no search or seizure occurred except 51 on the basis of the defendant voluntary actions and consent Based on the s foregoing reasons we find that the trial court did not err or abuse its discretion in denying the motion to suppress the evidence and confession CONVICTION AND SENTENCE AFFIRMED
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