State Of Louisiana VS Bobbi J. Forbes
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUI5IANA COURT OF APPEAL IA a U FIRST CIRCUIT 2012 KA 2001 i STATE OF LOUISIANA VERSUS BOBBI J FORBES Judgment Rendered June 7 2013 Appealed from the Second Twenty Judicial District Court In and for the Parish of St Tammany State of Louisiana Trial Court Number 520679 Honorable Raymond S Childress Judge Presiding x Walter P Reed Covington LA Counsel for Appellee State of Louisiana Kathtyn W Landry Baton Rouge LA Frank Sloan Mandeville LA Counsel for Defendant Appellant Bobbi J Forbes BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM JJ J WHIPPLE C J The defendant Bobbi J Forbes was charged by bill of information with possession of Alprazolam a violation of LSA 40 Count 1 S C R 969 possession of Oxycodone a violation of LSA 40 Count 2 S C R 967 possession of Morphine a violation of LSA 40 S CCount 3 possession R 967 of Hydromorphone a violation of LSA 40 S CCount 4 and possession R 967 of marijuana a violation of LSA 40 E The defendant pled not SC R 966 guilty to all counts The defendant filed a motion to suppress evidence and following a hearing on the matter the motion was denied Thereafter the defendant withdrew her prior plea of not guilty and at a Boykin hearing entered a Crosby plea of guilty to the charges reserving her right to challenge the trial s court rulings on the motion to suppress See State v Crosbv 338 So 2d 584 La 1976 For each of the four counts the defendant was sentenced to three years at hard labor with each sentence to run concurrently The sentences were suspended and the defendant was placed on probation for a period of five years with probation being subject to special conditions For the possession marijuana of conviction the defendant was sentenced to six months in the parish jail The six month sentence was suspended and the defendant was placed on probation for a period oftwo years This sentence was ardered to run concurrently with the other sentences The defendant now appeals designating one assignment of error We affirm the defendant convictions and sentences s FACTS The facts were developed at the motion hearing On the evening suppress to of April 10 2012 police officers with the St Tammany Parish Sheriff Office s were conducting a fake checkpoint on I at La Hwy 434 Corporal Jeff Brady 12 was informed by another officer that the driver of a red Toyota Camry had run a The possession chazge a misdemeanor was billed under a different docket marijuana of number than the first four counts 2 stop sign at an off on La Hwy 434 before getting back onto I Corporal ramp 12 Brady caught up to the Toyota and effected a traffic stop Richard Hobbs was the driver and the defendant was the front passenger There was also a dog in the seat vehicle As Corporal Brady was informing Hobbs of his violation he observed marijuana gleanings on the defendant clothing s Corporal Brady also saw a partially burned cigarette on the seat between the defendant slegs and detected the odor of marijuana in the vehicle Corporal Brady had both occupants exit the vehicle The defendant gave Corporal Brady the hand cigarette which rolled contained suspected marijuana Corporal Brady patted down Hobbs and found no weapons or contraband He had the defendant empty her pockets which contained no contraband He did not pat down the defendant because she was a female Corporal Brady prepared to search the vehicle but before doing so he asked the defendant to remove the dog As the defendant leaned into the vehicle to retrieve the dog Corporal Brady observed her make a furtive movement toward her waistband Corporal Brady put the dog back in the vehicle and brought the defendant to the rear of the vehicle and handcuffed her A female officer was called to the scene to conduct a thorough search of the defendant person Corporal Brady had Hobbs remove the dog and s then searched the vehicle Corporal Brady searched the defendant spurse which was in the vehicle The purse contained a Tylenol bottle and two prescription bottles One of the prescription bottles contained Flexeril Morphine sulfate Xanax and Dilaudid These drugs did not match either prescription on the bottles Shortly thereafter a female officer Detective Victoria Stelfox with the St Tammany Parish Sheriff Office arrived at the scene Detective Stelfox spoke to s the defendant The defendant informed the detective that she had contraband on her person The handcuffs were removed and the defendant was allowed to 3 retrieve from her crotch area a dollar bill that contained about six Roxicodone tablets The defendant was placed under arrest and Mirandized ASSIGNMENT OF ERROR In her sole assignment of error the defendant argues that the trial court erred in denying her motion to suppress the evidence Specifically the defendant contends the State failed to establish that she was advised of her Miranda rights before she admitted to having hidden contraband in her pants When a court denies a motion to suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the court s discretion i unless such ruling is not supported by the evidence See State v e Green 94 La 5 655 So 2d 272 28L However a court legal 0887 95 22 s findings are subject to a de novo standard of review See State v Hunt 2009 1589 a 1 T 12 25 So 3d 746 751 09 It is well settled that the ruling in Miranda v Arizona 384 U 436 86 S S Ct 1602 16 L Ed 2d 694 1966 protects an individual Fifth Amendrnent s privilege during incommunicado interrogation in a police atmosphere controlled In Miranda 384 U at 444 86 S Ct at 1612 the Supreme Court defined S custodial intenogation as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way Thus before a confession or inculpatory statement made during a custodial interrogation may be introduced into evidence the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights that he voluntarily and intelligently waived those rights and that the statement was made freely and voluntarily and not under the influence of fear duress intimidation menaces eats tlu inducements or promises See LSA P Cr C art 703 LSA 15 Hunt 25 So 3d at 754 See State v D R 451 S Roxicodone Z is the brand name for the generic name Oxycodone 4 Patterson 572 So 2d 1144 1150 La App lst Cir 1990 writ denied 577 So 2d 11 La 1991 Thus where the defendant alleges police misconduct in reference to the statement the State must specifically 1807 Montelo 2006 La 5 40 10 11 So 3d rebut these 952 966 allegations State denied S U cert v 131 S Ct 656 178 L Ed 2d 513 2010 Resolution of the issues now raised by the defendant on appeal challenging the correctness of the trial court ruling under Miranda would involve reviewing s the surrounding circumstances when the evidence was obtained including whether the defendant was in custody when questioned by Detective Stelfox and what Detective Stelfox told or asked the defendant befare the defendant told the detective she had contraband on her person These issues however were not addressed at the hearing because the defendant made no assertions about a violation of her Miranda rights in the written motion to suppress Instead the motion to suppress filed by the defendant stated in pertinent part that the evidences sic obtained herein 1 Were obtained without the defendant sconsent 2 Were conducted without probable cause 3 Were discovered pursuant to an improper road block sic 4 Andlor should not be admirted for any other reasons as provide d by applicable law As the transcript reflects the questions asked by both defense counsel and the prosecutor at the hearing on the motion to suppress focused on whether there was probable cause to stop the vehicle and whether there was probable cause to search the defendant Defense counsel made no argument after the last witness was called but stated Defense submits Your Honor In denying the motion the trial court focused on the issue of probable cause and made no mention of Miranda as follows Based upon the testimony of the officers who were called here today it would certainly appear to me that upon the initial contact there was a probable cause to stop them based upon the testimony of 5 Detective Boynton who said she observed the red Toyota Camry run the stop sign and identified it as one having a bike rack And then the officer pulled that vehicle over Corporal Brady and based upon his observations had sic certainly had reason to interact with the driver and the defendant He indicated that he had seen marijuana available and he did was appropriately sic supposed to do as far as not having contact with this particular female suspect He had called for another officer to come Detective Stelfox testified she arrived and after conversing with the defendant the defendant produced some additional contraband It sounds as though to me that everything was appropriately handled and that the evidence was appropriately received Louisiana courts have long held a defendant may not raise new grounds for suppressing evidence on appeal that he did not raise at the trial court in a motion to suppress Montelo 40 So3d at 967 The defendant must raise all grounds for suppression of the evidence that are knowable or available at that time The defendant bears this burden in order to give the State adequate notice so that it may present evidence and address the issue at trial on the motion Monteio 40 So 3d at 969 Because the defendant did not raise the grounds of improper and absent or Miranda rights in her written motion to suppress or allege facts supporting those grounds the State had no need to put on evidence of precisely what Detective Stelfox and the defendant talked about or whether Detective Stelfox questioning s of the defendant constituted custodial interrogation The State simply put on In 3 the motion hearing Corporal Brady testified regarding what he observed suppress to when Detective Stelfox seazched the defendant as follows She arrived on scene I informed her exactly what happened and what I observed She pulled the defendant aside and asked her if there was anything illegal any weapons on her person ar anything like that that she you know would harm d her during her search At that time the defendant told Detective Stelfox that she did have some Roxicodone secreted beneath her waistband in her pants Regarding this same issue Detective Stelfox testified as follows After talking to her briefly she had mentioned that she had his sic some contraband on her person Regarding whether Detective Stelfox speaking to the defendant constituted custodial s interrogation Corporal Brady tesrified that the defendant was handcuffed for officer safety reasons and was anested and Mirandized afrer the Roxicodone was found However on cross examination Detective Stelfox testified as follows 6 evidence at the motion hearing as required by LSA art 703 and LSA P Cr C D S 451 R 15 to show that the stop was based on probable cause and that the evidence seized was admissible See Monteio 40 So 3d at 969 Pursuant to LSA arts 703 and 841 to allow an objection on new P Cr C F grounds to be presented for the first time on appeal deprives the trial court of the opportunity to consider the merits of the particular claim See State v Cressv 440 So 2d 141 142 La 1983 Accordingly we find the defendant 3 sargument that she was not advised of her Miranda rights is not properly before us on appeal Moreover we find that the drugs hidden on the defendant sperson would still have been properly admitted at trial under the inevitable doctrine discovery The United States Supreme Court has held that unconstitutionally obtained evidence may be admitted at trial if it would inevitably have been seized by the police in a constitutional manner Nix v Williams 467 U 431 444 104 S Ct S 2501 2509 81 L Ed 2d 377 1984 In the instant matter prior to the defendant even revealing that she had Roxicodone hidden in her pants Corporal Brady observed marijuana gleanings on her clothes and saw a suspected marijuana cigarette in her lap he detected the odor of marijuana emanating from the vehicle and he found Xanax morphine and Dilaudid in the defendant spurse Based on these offenses observed by Corporal Brady he had probable cause to arrest the defendant See LSA art 213 P Cr C Accordingly the defendant would have been arrested whether or not the drugs hidden on her person had been discovered A search incident to arrest either on the scene or at the police station would have revealed the hidden Roxicodone See Chimel v California 395 U 752 762 S 63 89 S Ct 2034 2040 23 L Ed 2d 685 1969 State v Surtain 2009 La 1835 Q Officer when you arrived on the scene was Ms Forbes in cuffs A Yes sir Q So she was clearly under arrest A Yes sir I believe so 7 10 16 3 31 So3d 1037 1043 The Roxicodone therefore would have been admissible at trial The assignment of error lacks merit For the above reasons the defendant convictions and sentences are s affirmed CONVICTIONS AND SENTENCES AFFIRMED 8
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