State Of Louisiana VS Rani Cuevas
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 KA 0649 STATE OF LOUISIANA VERSUS RANI CUEVAS Judgment Rendered December 22 2010 Appealed from the Twenty Second Judicial District Court In and for the Parish of St Tammany Louisiana Trial Court Number 470 111 Honorable William J Crain Judge Walter P Reed District Attorney Covington LA Attorneys for State Appellee and Kathryn W Landry Asst District Attorney Baton Rouge LA Marion B Farmer Covington LA Attorneys for Defendant Appellant Rani Cuevas and Robert Glass New Orleans LA BEFORE CARTER C GAIDRY AND WELCH JJ J WELCH J The defendant Rani Cuevas was charged by bill of information with attempted possession with intent to distribute MDMA a violation of La R S 979 40 and La R 40 Count 1 possession with intent to distribute S 966 1 A marijuana a violation of La R 40 Count 2 attempted possession S 966 1 A with intent to distribute methamphetamine a violation of La R 40 and La S 979 S 967 R 40 Count 3 possession with intent to distribute cocaine a 1 A violation of La R 40 Count 4 and attempted possession with intent S 967 1 A to distribute psilocybins a violation of La R 40 and La R 40 S 979 S 966 1 A S 27 A Count 5 See La R 14 The defendant filed a motion to suppress the evidence and following a hearing on the matter the motion was denied Thereafter the defendant withdrew her prior pleas of not guilty and at the Boykin hearing entered a Crosby plea of guilty to all five counts reserving her right to challenge the trial court ruling on the motion to suppress See State v Crosby s 338 So 584 La 1976 The defendant was sentenced as follows on Count 1 2d she was sentenced to two years at hard labor on Count 2 she was sentenced to fifteen years at hard labor and ordered to pay a 5 fine thirteen years of the 000 sentence were suspended two years were to be served without benefit of probation parole or suspension of sentence and upon release the defendant was ordered to serve five years of supervised probation subject to special conditions of probation on Count 3 she was sentenced to two years at hard labor on Count 4 she was sentenced to two years at hard labor and on Count 5 she was sentenced to two years at hard labor The sentences were ordered to run concurrently defendant now appeals designating one assignment of error We affirm the convictions and sentences I The The defendant filed a motion for leave to file a reply brief We grant the motion FACTS At the motion to suppress hearing on May 14 2009 several law enforcement officers from Louisiana and Mississippi testified about the events surrounding the s defendant arrest and the execution of several search warrants subsequent application for and Agent Brian Sullivan with the Mississippi Bureau of Narcotics testified that in July of 2008 he received information from a confidential informant that a female later identified as the defendant was delivering large quantities of marijuana to the residence of Cory Ladner in Pass Christian Mississippi Several days later Agent Sullivan along with other Mississippi law enforcement officers initiated surveillance on Ladner residence s and observed the defendant leaving Ladner residence in a vehicle with a s Officers followed the defendant to a Liberty Road Louisiana license plate residence in Slidell James Impastato and his wife Melissa Cuevas the s defendant mother lived at the Liberty Road residence Impastato testified at the hearing that while the defendant had a second floor bedroom at his home she did not come around often During the time the defendant was under surveillance she was not according to Impastato living at the house on Liberty Road Days later Mississippi officers again initiated surveillance on Ladner in Mississippi Officers followed him from his home and conducted a traffic stop They found marijuana in his vehicle Ladner informed the officers that he was receiving marijuana in bulk from one to four pounds from the defendant Ladner believed the s defendant source of the marijuana was Conrad Shelby the s defendant boyfriend codefendant used as an informant Officers determined that Ladner could be Subsequently Ladner communicated with the defendant through text messaging The defendant agreed to sell several pounds of marijuana 2 The defendant boyfriend was identified at the motion to suppress hearing as Conrad s Shelby who has also appealed in docket no 2010KA0759 decided this day raising the same issue as the defendant in her appeal 122201 unpuhlishec State v Shelby 2010 0759 La App 1 Cir 3 to Ladner On July 2 2008 the day of the arranged drug buy Mississippi and Louisiana officers initiated surveillance on Slidell addresses that agents from Mississippi believed the defendant was residing residences on Garden Drive and Liberty Road at or frequented namely Officers observed the defendant and Shelby drive to the Garden Drive residence in a blue fullsize Dodge Ram truck with an extended cab They went inside When they returned to the truck the defendant had a book bag over her shoulder Shelby was carrying a bundle of clothes They then drove to the Liberty Road residence where they stayed for several minutes From there they drove to a gas station They left the gas station and drove to a residence on CC Road where they stayed for several minutes During this time when the defendant and Shelby were making these stops the defendant and Ladner were text messaging each other Ladner kept Agent Sullivan informed about the contents of the text messages After the defendant and Shelby left the CC Road residence the defendant texted Ladner that they were headed to Pass Christian Mississippi to meet him Ladner at a gas station at the Kiln Delise exit Trooper Ron Whittaker Jr with the Louisiana State Police narcotics section testified at the hearing that he conducted surveillance on the Liberty Road residence Officers conducted a trash pull at that residence and found marijuana gleanings paraphernalia and gallonsized vacuum sealed bags Law enforcement agents followed the defendant and Shelby to Mississippi Agent Sullivan contacted the Harrison County Sheriff Department and asked s them to stop the truck the defendant and Shelby were in when it entered Harrison County Deputy Danny Gilkerson with the Harrison County Sheriff Department s observed the defendant pass him Deputy Gilkerson followed the truck and saw it veer onto the shoulder of the road Having observed a traffic violation which provided him his own probable cause for stopping the truck Deputy Gilkerson 0 stopped the vehicle Upon approaching the truck Deputy Gilkerson smelled marijuana from the truck He requested consent to search the truck but the defendant and Shelby refused A K9 unit was brought to the scene The dog alerted and upon a search of the vehicle officers found behind the driver seat a s cardboard box containing approximately three pounds of marijuana defendant and Shelby were arrested and Mirandized The Shelby was asked by an agent where he was coming from Shelby responded he had come from his house which was the residence on CC Road Louisiana police officers subsequently requested search warrants for the three residences where the defendant and Shelby were observed under surveillance stopping at before traveling to Mississippi with approximately three pounds of marijuana to sell At the Liberty Road address officers seized a large amount of narcotics and paraphernalia including marijuana cocaine assorted prescription pills hashish mushrooms vacuumseal bags smoking pipes and a digital scale At the Garden Drive address officers seized a smoking pipe used for consumption of marijuana and vacuumseal bags At the CC Road address officers seized a black suitcase filled with marijuana and 62 in cash inside a compact disc 00 100 case near the suitcase ASSIGNMENT OF ERROR In her sole assignment of error the defendant argues that the trial court erred in denying her motion to suppress evidence seized from 32865 CC Road in Slidell Specifically the defendant contends that the search warrant affidavit did not establish probable cause and further that the search warrant cannot be saved by the Leon goodfaith exception The defendant is not attacking the validity of the Liberty Road address and Garden Drive address search warrants When a search and seizure of evidence is conducted pursuant to a search warrant the defendant has the burden to prove the grounds of his motion to 5 suppress La C art 703 State v Hunter 632 So 786 788 La App P Cr D 2d I Cir 1993 writ denied 940752 La 6 638 So 1092 94 17 2d When a trial court denies a motion to suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court discretion i unless s e such ruling is not supported by the evidence See State v Green 940887 p 11 La 5 655 So 272 281 95 22 2d However a trial court legal findings are s subject to a de novo standard of review See State v Hunt 20091589 p 6 La 09 1 12 25 So 746 751 3d Article 1 5 of the Louisiana Constitution requires that a search warrant may issue only upon an affidavit establishing probable cause to the satisfaction of an impartial magistrate La C art 162 Probable cause exists when the facts P Cr and circumstances within the affiant knowledge and of which he has reasonably s trustworthy information are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the 2d place to be searched State v Johnson 408 So 1280 1283 La 1982 The facts establishing the existence of probable cause for the warrant must be contained within the four corners of the affidavit State v Duncan 420 So 1105 1108 2d La 1982 see State v Green 2002 1022 pp 67 La 12 831 So 962 02 4 2d An issuing magistrate must make a practical commonsense decision whether given all the circumstances set forth in the affidavit there is a fair probability that evidence of a crime will be found in a particular place Illinois v Gates 462 U 213 238 103 S 2317 2332 76 L 527 1983 State v S Ct 2d Ed Byrd 568 So 554 559 La 1990 The process of determining probable cause 2d for the issuance of a search warrant does not involve certainties or proof beyond a reasonable doubt or even a prima facie showing but rather involves probabilities of human behavior as understood by persons trained in law enforcement and as R based on the totality of circumstances The process simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system State v Rodrigue 437 So 2d 830 83233 La 1983 see also Green 20021022 at p 7 831 So at 968 2d The review of a magistrate determination of probable cause prior to issuing s a warrant is entitled to significant deference by reviewing courts A fter thefact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review Gates 462 U at 236 103 S at 2331 Further because of the S Ct preference to be accorded to warrants marginal cases should be resolved in favor of a finding that the issuing magistrate judgment was reasonable United States s v Ventresca 380 U 102 109 85 S 741 746 13 L 684 1965 S Ct 2d Ed Rodrigue 437 So at 833 2d In the instant matter the defendant contends that the CC Road address search warrant affidavit contained no information on ownership of that property that the surveilling officers observed no activity independently warranting suspicion there and there was no evidence that either the defendant or Shelby entered any of the buildings on CC Road The defendant also maintains that agents had not on any prior occasion connected the CC Road address to the defendant We address first the defendant connection to the CC Road address Agent s Sullivan testified at the motion to suppress hearing that the defendant and Shelby went to 32865 CC Road in Slidell and stayed there for several minutes before driving to Mississippi While it is not clear whether they entered the house or the trailer on that property it is clear they remained at the property for several minutes The Liberty Road search warrant affidavit indicated that the defendant 3 The CC Road address search warrant describes the residence as follows a single two story wooden residence set off of the roadway A large white FEMA trailer is located east of the residence 7 was selling high grade marijuana for approximately 4 a pound that she 00 700 had provided marijuana to subjects both in the Slidell area and in Mississippi and that over the course of the past three months she had been responsible for approximately 50 worth of marijuana being delivered to South Louisiana 00 000 and Mississippi Testimony at the hearing further established that Shelby lived at the CC Road residence and that Shelby was the defendant boyfriend s Also Ladner who the defendant agreed to sell about three pounds of marijuana to testified that he thought the defendant source of the marijuana was Shelby the s s defendant boyfriend As such despite the defendant contention the defendant s was clearly connected to the CC Road address As indicated by the defendant in her brief the CC Road address search warrant affidavit as well as the search warrant does not provide that Shelby lived at the CC Road address This likely was an oversight on the part of Detective Scott Saigeon the search warrant affiant About two hours prior to Judge Elaine s DiMiceli signing the CC Road address search warrant she signed the Liberty Road address search warrant which indicated that Shelby residence was on CC s Road The affiant of the Liberty Road address search warrant was Trooper Whittaker It would appear thus that Judge DiMiceli was aware that Shelby lived at the CC Road residence when she signed the CC Road address search warrant Nevertheless even had Judge DiMiceli not known that Shelby lived at the CC Road residence we would look to the testimony at the motion to suppress hearing which established that Shelby resided at the CC Road address Normally the law does not permit a reviewing court to go outside the four corners of a search warrant affidavit in reviewing a probable cause determination However when there are inadvertent material omissions the court will look to outside evidence to support or destroy a probable cause finding State v Morris 444 So 1200 1202 La 1984 see State v Fugler 971936 p 25 La App 1 2d N st Cir 9 721 So 1 20 amended in part on rehearing 971936 La App 1 98 25 2d st Cir 5 737 So 894 writ denied 991686 La 11 749 So 668 99 14 2d 99 19 2d Detective Saigeon included in his affidavit twenty paragraphs that address the workings of drug dealers and drug dealing in broad general terms In his brief the defendant asserts that Detective Saigeon was reduced to pumping up his meager offering with 20 of boilerplate descriptions that paragraphs include generalizations so farfetched in their invocation of the drug world at large as to be absurd in our case We do not agree In United States v Webster 960 F 1301 1 5 2d 307 Cir per curiam cert denied 506 U 927 113 S 355 121 L 269 S Ct 2d Ed 1992 wherein a search warrant was upheld the affidavit alleged that based on the officer experience drug dealers and traffickers commonly keep caches of s drugs as well as paraphernalia and records of drug transactions in their residences Similarly Detective Saigeon in the instant matter provided information regarding how drug dealers might use their homes such as d That it is common for narcotics traffickers to maintain books records receipts notes ledgers airline tickets receipts relating to the purchase of financial instruments andor the transfer of funds and other papers relating to the transportation ordering sale and distribution of controlled substances That the aforementioned books records receipts notes ledgers etc are maintained where the traffickers have ready access to them e That it is common for largescale drug dealers to secrete sic contraband proceeds of drug sales and records of drug transactions in secure locations within their residences their businesses andor other locations which they maintain dominion and control over for ready access and to conceal these items from law enforcement authorities f That in order to accomplish this concealment narcotics traffickers frequently build stash places within their residences or businesses The addition of these paragraphs to the affidavit indicates that Detective Saigeon was aware that Shelby lived at the CC Road residence A judge issuing a 01 search warrant may infer that evidence is likely to be found where a drug dealer lives See State v Profit 2000 1174 pp 5 6 La 1 778 So 1127 1130 01 29 2d per curiam Also a sufficient nexus exists between marijuana seized from a vehicle and Shelby residence to establish probable cause for a warrant to search s the premises because a residence is a quite convenient commonlyused place for planning continuing criminal activities like largescale marijuana trafficking 2d and money laundering Profit 20001174 at p 6 778 So at 1130 United States v Robins 978 F 881 892 5th Cir 1992 Accordingly we 2d conclude that the information that Shelby lived at the CC Road address which was not included in the affidavit was a material omission Given the importance of the evidence that Shelby lived at the CC Road address that such information had been provided in Trooper Whittaker affidavit s for the Liberty Road address and that Detective Saigeon provided in his search warrant affidavit information on how drug dealers use their homes to maintain and secret records of drug transactions we conclude that such an omission from Detective Saigeon affidavit was inadvertent Therefore considering all of the s information officers had including that the defendant and Shelby were known drug dealers Shelby lived at the CC Road address and the CC Road address was the last place they visited before being arrested in Mississippi for transporting about three pounds of marijuana we find there was probable cause to issue the CC Road address search warrant See State v Revere 572 So 117 128 La App I Cir 2d 1990 writ denied 581 So 703 La 1991 2d While not dispositive of the probable cause issue which has been resolved we feel the following issue should be addressed The defendant states in her brief It is reasonable to conclude that the decision to seek the CC Road warrant was an afterthought According to the defendant When the searches of Garden Drive and Liberty Drive failed to produce a major trove of evidence the agents were 10 hoping to discover they seized on the idea of taking a shot at CC Road We do not agree with this assessment of why CC Road was searched The only information Detective Saigeon had at the time he applied for a search warrant was that the defendant and Shelby after having left the CC Road residence were arrested in Mississippi for drug possession Neither the CC Road search warrant nor the affidavit makes any reference to any searches or the products thereof of the Liberty Road or Garden Drive residences Further Detective Saigeon testified on cross examination at the motion to suppress hearing that the information he included in his CC Road search warrant affidavit had nothing to do with any evidence seized at either Liberty or Garden Q Did anybody tell you that there was any evidence seized at either of those two locations A search Nobody did and I wasn present for either one of those t warrants While those were occurring I was preparing my affidavit Q So you preparing your affidavit as they were actually re searching those other two residents sic A That correct s Q So nothing retrieved from those two residents sic caused you to believe that there was anything at the CC address A No sir I wasn present that correct t s Finally we note that even had the CC Road address search warrant been based on less than probable cause under the Leon goodfaith exception the evidence seized pursuant to that search warrant would not be suppressed It is well settled that even when a search warrant is found to be deficient the seized evidence may nevertheless be admissible under the goodfaith exception of United States v Leon 468 U 897 919 20 104 S 3405 3418 19 82 L 677 S Ct 2d Ed 1984 wherein the United States Supreme Court held the exclusionary rule should not be applied so as to bar the use in the prosecution caseinchief of evidence s obtained by officers acting in an objectively reasonable goodfaith reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid Under Leon 468 U at 923 104 S at 3421 four instances in which S Ct suppression remains an appropriate remedy are 1 where the issuing magistrate was misled by information the affiant knew was false or would have known was false except for a reckless disregard for the truth 2 where the issuing magistrate wholly abandoned his detached and neutral judicial role 3 where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable and 4 where the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seizedthat the executing officers cannot reasonably presume it to be valid The instances in which suppression remains an appropriate remedy enunciated in Leon clearly reflect that suppression of evidence seized pursuant to an invalid warrant is not a remedy to be lightly considered Furthermore the jurisprudence presumes good faith on the part of the executing officer and the defendant bears the burden of demonstrating the necessity for suppression of evidence by establishing a lack of good faith State v Maxwell 20091359 p 11 La App 0 Cir 5 38 So 1086 1092 writ denied 20101284 La 10 10 3d 10 17 9 3d So Applying these factors to this case we find that even if the CC Road address search warrant was to be considered defective the goodfaith exception would apply The defendant did not establish a lack of good faith on the part of the executing officer There were no misleading statements contained in the affidavit There was no evidence that Judge DiMiceli abandoned her neutral role in her issuance of the search warrant nor was there anything on the face of the warrant that would make it so deficient that it could not be presumed valid 12 Detective Saigeon provided the judge information gathered by the surveillance efforts of Louisiana police officers and Mississippi narcotics agents Detective Saigeon was not unreasonable in believing he provided the judge with sufficient information to issue a search warrant Accordingly suppression of the evidence would not be appropriate under the Leon goodfaith exception to the exclusionary rule See Maxwell 2009 1359 at pp 11 12 38 So at 1092 3d The trial court did not err in denying the defendant motion to suppress s The assignment of error is without merit CONCLUSION For the foregoing reasons the defendant convictions and sentences are s affirmed CONVICTIONS AND SENTENCES AFFIRMED 13
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