State Of Louisiana VS Sedric Levond Jackson
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 KA 2466 ifiiA STATE OF LOUISIANA VERSUS SEDRIC LEVOND JACKSON On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 06 05 0961 Section VII Honorable Todd W Hernandez Judge Presiding Hillar C Moore III Attorneys District Attorney State of Louisiana Monisa L for Thompson Assistant District Attorney Baton Rouge Andre Belanger Manasseh Baton LA Gill 8r Knipe Rouge Attorney for Defendant Appellant P LC Sedric Levond Jackson LA BEFORE PARRO McCLENDON AND WELCH JJ Judgment rendered kJ r J U N 1 7 2009 PARRO J Sedric Levond The defendant of information with count 1 over one l b 40 967 F Subsequently seized on the second discovered or The through residence and any fruits of denied After the both counts offender a defendant l and Following counts 1 and 2 pled an 2 He now possession of count of count 2 a guilty on Following warrantless search a violation of LSA both counts on counts 1 was On each count a found was and 2 he adjudged he was a was a second guilty second as charged on against felony habitual felony habitual offender sentenced to to run a hearing the motion habitual offender bill of information imprisonment at hard labor with both sentences other amended bill illegal search and seizure of the defendant and hearing he a one not completion of the jury trial he alleging that charged by day of his jury trial he moved to suppress anything Thereafter the state filed the defendant on s R 40 967 A 200 grams but less than 400 grams of cocaine s R was was possession with intent to distribute cocaine count of violation of LSA a Hip Jackson twenty five years of concurrently with each appeals designating the following assignment of error The trial court erred in denying the m otion to s uppress their e vidence by its failure to find that the police manufactured them to gain entry into own exigent circumstances which allowed the Prescott residence without first obtaining a search warrant based upon probable cause that narcotics would be discovered therein In reaching its decision the trial court failed to expressly discuss the five factor test outlined in Cir cert 1995 denied For the 516 applied which if following on count resentencing on count 2 s U 883 v Rico 51 F 3d 495 5th L Ed 2d 150 116 S Ct 220 would have resulted in reasons adjudication and sentence adjudication United States we on count 1 affirm 133 a contrary the conviction result habitual offender affirm the conviction and habitual offender and vacate the sentence on count 2 and remand for 2 in accordance with this decision The state set forth that on April 15 2003 under Nineteenth Judicial District Court docket number 10 01 346 the defendant pled guilty to committing one count of simple robbery on September 2 25 2001 See State v Shaw 06 2467 La 11 27 07 2 969 So2d 1233 FACTS Rouge City Police Detective Drew White testified at Baton suppress hearing and 2005 reliable a at the jury trial concerning the pertinent events defendant sold cocaine for Ronrico number 3 in Baton Detective White was kilograms of cocaine cocaine in the had been Howard distribution of an At afraid of alerting anyone Detective White he the very that the apartment 4 00 p and one m half cooking were white in m an was parked Monte Carlo for his arrest for effort to corroborate in question under in front of the apartment apartment and drove off in Howard and followed his vehicle recognized stop Howard too close to the apartment because he in the apartment to the police investigation However made Detective White initiated Miranda4 rights and arrested him on the surveillance a traffic the because stop of Howard outstanding warrant concerning where he had driven from and denied any involvement with apartment nervous In one outstanding Howard exited the and protested it determining was not whether the ruling on hearing State v going to take him case Howard became right for the police to take him back evidence given at the trial of the Miranda were to make contact with whomever was inside limited to the evidence adduced at the 4 seen apartment However when the police told Howard they back to the 3 approximately placed the apartment by the c1 m random turns advised him of his was 6 00 p quickly realized that Howard had began making Howard lied warrant approximately Detective White Detective White did not want to was a Detective White approximately 7 00 p the Monte Carlo at approximately 2003 model The vehicle described surveillance Detective White by the c1 that he had drug dealer and hydrocodone the claims of the c 1 On March 9 at 5515 Prescott Road 2005 to The c1 also indicated that the defendant and Howard riding around in known 3 apartment and the defendant and Howard apartment was a At advised in the Howard On March 10 Rouge advised CI confidential informant motion a v to the the motion to suppress was correct we are not the motion We may also consider all pertinent on Chopin 372 SO 2d 1222 Arizona 384 U S 436 86 S Ct 1602 3 16 LEd 2d 694 1223 n 1966 2 La 1979 apartment Detective White testified that Howard when Additionally The and stopped crowd of about a thirty or began ringing during the traffic forty people gathered around the traffic stop in the from the defendant was area with to them An open notebook was blender with apparent cocaine residue also on containing the kitchen counter in apparent cocaine residue containing the wrapper of can electric on ounces of cocaine in the mixing bowl the apartment a on The toilet in the bathroom was search warrant dishes commonly used to the kitchen counter were on Additionally the counter in kilogram of cocaine a scale and plain view was next to a A the counter to a warrant revealed nineteen and apartment in the bathroom a with dollar amounts written next plain view them The were on them names subsequent search of the apartment pursuant half apartment and to secure numerous on run in the securing the defendant the pOlice obtained However figure They became safety and the safety of any evidence After saw a apartment to a dark area of the searching the apartment plain view one to the the door and announced their apprehended running from the bathroom running cook cocaine on running inside the apartment and through the barricaded door kicked their way before someone lighted kitchen concerned for their trash apartment would be alerted police went to the apartment knocked They heard presence was stop stop and begin destroying any cocaine present in the apartment The A phone also police became concerned that anyone traffic in the using his cellular telephone was Additionally the spindle from next to the toilet and cocaine residue an was the toilet MOTION TO SUPPRESS EVIDENCE In his sole necessary exigency United States States v S Ct 1105 assignment of v as a means Mercadel Vega 221 3d F error of 226 the defendant argues the bypassing the warrant requirement He relies 5upp F 2d 810 815 E D La 2002 789 800 5th Cir 2000 148 L Ed 2d 975 2001 police created the cert denied which utilized the 4 531 on and United s U 1155 121 following five factor test from Rico 51 F 3d at 501 to determine whether 1 the obtain 2 3 degree of urgency involved and amount of time necessary to a warrant the reasonable belief that contraband is about to be removed possibility of danger the contraband while 4 exigent circumstances existed a to the police officers guarding the site of search warrant is sought indicating the possessors of the contraband that the police are on their trail and information aware are ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic Footnote 5 the omitted The defendant concedes the presence of the fifth factor but argues other four factors police announced their presence were present in this case when the none of the and thus the trial court erred in denying the motion to suppress Initially we note that the trial court under was obligation to follow no precedent of the federal fifth circuit in this matter In state court federal district and appellate court cases are persuasive rather than binding authority City of Mandeville 98 2271 writ denied 99 3432 Further La La 2 18 00 case Probable cause Layne 743 So 2d 1263 v 1269 754 So 2d 966 the trial court had defendant to determine whether App 1st Or 11 5 99 See no need to look to the or not alone does not cases exigent circumstances justify the relied present were entry into an on area by the in this otherwise protected by the Fourth Amendment of the United States Constitution and the Louisiana Constitution protected area if there is Exigent circumstances probable cause Article I are justify an Section 5 probable cause There is to arrest and entry into a protected cause intrusion of exigent circumstances area when that coupled with without those avoidance of a pOSSible injury to the officers and the public 5 a Examples of exigent circumstances have been found to be escape of the defendant that could justified exceptional circumstances which exceptional circumstances would be unlawful confrontation a violent and the destruction of evidence State Hathaway 411 So 2d 1074 1079 La 1982 v The fact that certain factors under the federal fifth circuit s test case does not that mean exigent circumstances Moreover the federal In Mercadel their facts defendant s court found home through the by the defendant on Mercadel exigency an assuming that the police a screen and could have relied door there attempted present are distinguishable government argued the presence of marijuana the home created even cases were not absent in this were was no to obtain a saw 226 the exigency 2d 5upp F in the The at 815 marijuana in the defendant s as warrant without the police undetected were creating risk to themselves public and without exposing the evidence to imminent danger of removal destruction In knocked Mercadel 226 5upp F the home at a home the door of the home and announced their presence The secure The court found that without cause and police police entered secure a Vega They 221 3d F justification the police had abandoned their opportunity to retrieve weapons held the decision to abandon the of time to or positions and had taken action they believed might give the surveillance suspects the through the back door the defendant left open after he exited subsequently recovered four buckets of marijuana from the home at 794 or at 816 17 2d Vega while investigating possible drug dealing on on warrant noted that the record was of or surveillance secure any other reasonable devoid of evidence that police surveillance suspects awareness leave the premises with drugs or or otherwise or dispose of drugs was not justified predicate an by The court an The court exigency that the suspects was were seeking to dispose of the absence specifically created by the attempting to same Vega 221 F 3d at 800 In the instant case the exigency was their presence at the door of the defendant s of the The police following him and his use police did not create this exigency of a created not by the police announcing apartment but by Howard s awareness cellular telephone Once Howard became 6 after that aware awareness that the police had followed him from the defendant his accomplice to a disposing of evidence The defendant apartment See State safety 449 So 2d 1356 enter in the police knocked Hymel to La 1984 blocks away from his was apartment forced them or to ensure App 1st Cir to officer writ denied finding exigent circumstances existed for the police to apartment without s La the attempt to an not the defendant prevent the destruction of evidence and Farber 446 SO 2d 1376 1380 v instruct going to the apartment the door in or actions inside the s to apartment The police did on investigate the tip and to determine whether enter the reason every search warrant before The containing the suspected cocaine further had dispose of the drugs luxury of obtaining not have the he apartment a warrant because apartment there witnessed the arrest and alerted was possibility that was a Farber Hymel who was in the arrested someone only a few could have and the apartment might have been destroyed evidence This assignment of error is without merit REVIEW FOR ERROR Initially 920 which designated note that our review for error is we provides that the only matters in the assignments of error 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 CCr P art 920 2 On count 2 the trial court failed to than one dollars hundred thousand dollars See LSA 5 R 40 967 F l b count 2 and remand for 5 It is not recidivist The a nor more 5 than three hundred Accordingly we a fifty thousand vacate the sentence on habitual offender The statute increases the sentence for a reference to the sentencing provisions of the the conditions imposed on the sentence are those called for in the increase is computed by offense Similarly reference statute State v Bruins 407 So 2d 685 687 La 1981 underlying not less resentencing crime to be penalty impose the mandatory fine of 7 CONVICTION SENTENCE ON COUNT HABITUAL 1 OFFENDER ADJUDICATION OFFENDER ADJUDICATION AFFIRMED ON CONVICTION COUNT 2 AFFIRMED COUNT 2 VACATED REMANDED WITH INSTRUCTIONS 8 AND AND HABITUAL SENTENCE ON NUMBER 2008 KA 2466 STATE OF LOUISIANA FIRST CIRCUIT VERSUS COURT OF APPEAL STATE OF LOUISIANA SEDRIC LEVOND JACKSON tJ WELCH J DISSENTING I applies the to exception in this I believe that the dissent respectfully exigency justification for manufactured police exigency warrantless intrusion into a a home and therefore the warrantless entry into the Prescott residence case violated the Fourth Amendment to the United States Constitution In this that the defendant contends that the evidence appeal police created their exigency making the officers requirement presumptively residence own as warrantless unreasonable for a Us exigency v 883 116 S Ct 220 exception exception to to the the In 113 L Ed 2d 150 warrant not pass determining v Duchi Just The federal courts of 1995 as police a Fourth Amendment whether exigency but also tactics that the warrant a to federal on the exigency police manufactured denied cert 516 U S exigent circumstances manufactured exigency have made it clear that muster if the officers are an is an exigent deliberately Id officers consideration is the 1995 exception an case 5th Cir 502 requirement Id exception circumstances do created them 51 F 2d 495 bypassing support thereof he relies In warrantless intrusion in the Rico demonstrates forced entry into the Prescott Fourth Amendment jurisprudence which has created justification of a means clearly generated given to the 966 F 2d 1278 exigent circumstances the not Rico 8th Cir manufactured the motivation of the reasonableness and exigency 1284 only to were in creating propriety of the investigative 51 F 3d at 502 1990 police by police Federal quoting United courts do not States simply look at that in time when the officers made the warrantless entry point whether circumstances exist exigent Where presence known at the entry of a residence home is a Rico foregone conclusion 5th Guerra 788 F 2d 295 297 298 manufactured police tactics investigative been necessitated after made police circumstances The crucial the officer question a denied 531 U S See warrant on Prescott On 9 and 10 May May 10th a vehicle for Howard s arrest entirety of the police exigency alleged the home Rico initial decision s to approach is whether case exigent the exigent premises v 221 Vega 2005 p justified 789 possession 5th 799 148 L Ed 2d 975 2001 being manufactured and sold officers of set up covert hydrocodone follow Howard of the vehicle and Cir 2000 cert The record Officer White received information from were m 3d F Officer White stated that there to circumstances as the Prescott was observed was an leaving outstanding the warrant Officer White and another he drove away from the apartment placed Howard 2 at a surveillance outside the They waited twelve blocks before pulling Howard out have 51 F 3d at 501 the real issue is whether alert anyone who may have been inside the apartment got Howard to approach the apartment door without having first drugs at 6 00 for police officer decided presence up to the One hour later Ronrico Howard apartment to known 121 S Ct 1105 1155 residence in wanting to uS confidential informant that residence in this initial decision secured reflects that leading look the analyzing a claim of 788 F 2d 297 298 Munoz Guerra the officers courts Munoz v Because review is not confined to the circumstances their presence justified United States Therefore in by the warrantless entry into 906 So 2d at 1284 Duchi officers have made their immediate warrantless entry into the Cir 1986 those particularly here 51 F 2d at 501 federal exigency an as determine to as over under arrest to not the officers Officer White Thereafter two officers searched the vehicle and uncovered The officers contraband began and Howard gave them from observed Howard to Howard question drugs regarding where he had Officer White candidly admitted to to information by his confidential informant provided indicated that he had the stop but made to seen no him to Howard to attempt provide talking White testified that after the stop phone began ringing Prescott residence to on his cell phone merely in the vehicle assumed that Howard conduct surveillance had 20 25 were events the Prescott residence other officers then no approached response Officer transpiring against s so that they could to Officer White escorted Howard Howard s wishes come leaving the residence and announced their presence off would call the someone Officer White then and gone and learned that between the time the other officers left and saw no one tipped At trial Officer Burkett testified that he conducted surveillance residence and outgoing for Officer Burkett whether anyone had minutes receiving looking to arresting Howard Officer Eric Burkett continued the Prescott residence questioned one on were prior gathered around them and Howard alert anyone there of the evidence the police to crowd and he became concerned that While the officers back a cross Officer White ascertain whether Howard made any Rather he the detention on Officer White with corroboration of the individuals who may have been inside the Prescott residence destroy they if Howard had see left the home with any narcotics prior come exiting examination that he followed Howard and initiated the stop calls any other or different address than the Prescott apartment a suppression hearing At the evidence of no approximately returned Officer White and the Prescott residence knocked Upon realizing that on someone was no a to the number of the front door in the home and the officers kicked in the bottom of the door and crawled 3 through it telephonic In warrant to rejecting finds that the him and the of the Officer White Once inside conduct defendant exigency use a was cellular a telephoned claim of police manufactured s If the officers reasonably and obtained a search created by Howard telephone after that s awareness awareness However the circumstances of this police judge a believed that Howard case tipped the exigency of the majority police following rather than by the actions clearly indicate otherwise off the Prescott residence occupants before they stopped Howard in his vehicle the danger of destruction of evidence would have been imminent destruction of evidence would be Howard stopped conducted a his vehicle into the home against Moreover whether Howard even at Howard were his wishes all before to prevent him under arrest calls outgoing to they eventually ended no to attempt ascertain prior to the stop of his vehicle the officers up the warrantless entry return to to the apartment with obtain a doing with considerable warrant telephonic ease Under the facts of this after case I only conclude that the exigency created when the officers made their presence known at the apartment apartment without a was warrant of the officers was own making and their entry into the unreasonable In the context of the Fourth amendment the the making the stop the officers made leading action questioned Howard and returned Howard to forcefully entering the residence without a can placed transpiring the officers clearly had time which warrant searched Howard and made any As all of these events police Yet the officers continued to follow expected full search of the vehicle the Prescott residence and immediate single and distinct purpose for exclusionary rule is deterrence of police violations of the constitutional protection against unreasonable searches 614 F 2d 1037 1046 47 5th Cir and seizures 1980 United States Because the warrantless 4 v Brookins entry into the Prescott residence under all of the circumstances of this violated the Fourth Amendment the evidence seized should have been motion to suppressed Therefore suppress 5 case was as a the trial unreasonable and result of that court erred in illegal entry denying the
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