State Of Louisiana VS Raymond L. Austin
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 KA 0122 STATE OF LOUISIANA VERSUS RAYMOND L AUSTIN Judgment Rendered JUN 1 0 2011 EALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE PP G STATE OF LOUISIANA DOCKET NUMBER 04 08 0580 THE HONORABLE DONALD R JOHNSON JUDGE Llillar C Moore III District Attorney Attorney for Appellee State of Louisiana and Dylan C Alge Assistant District Attorney Baton Rouge Louisiana Bertha Moseley Hillman Baton Rouge Louisiana Attorney for Defendant Appellant Raymond L Austin BEFORE WHIPPLE McDONALD AND McCLENDON JJ The defendant Raymond L Austin was charged by bill of information with simple burglary of an inhabited dwelling a violation of La R 14 He pled S 62 2 not guilty At the conclusion of a bench trial the defendant was found guilty as charged The state filed a multiple offender bill of information seeking to have the defendant adjudicated a habitual offender and sentenced under La R 15 I S 529 Following a hearing the defendant was adjudicated a third felony habitual offender He subsequently was sentenced to life imprisonment at hard labor without the benefit of probation parole or suspension of sentence The defendant now appeals asserting the following assignments of error I The district court erred in denying the defendant motion to suppress the s evidence 2 The district court erred in imposing an illegal sentence Finding no error in either assignment we affirm the conviction and sentence ASSIGNMENT OF ERROR 1 DENIAL OF MOTION TO SUPPRESS In his first assignment of error the defendant asserts the district court erred in denying his motion to suppress the evidence based upon the fact that the investigating officers in this case violated the defendant Fourth Amendment s right to privacy by surreptitiously placing a GPS tracking device on the s defendant vehicle and monitoring his movement He argues the information unconstitutionally obtained from the GPS device formed the basis for the stop and search of the defendant person on March 3 2009 and also the basis for probable s cause for the issuance of the search warrant for his residence The defendant The habitual offender bill of information alleged that the defendant previously pled guilty on August 26 1982 in the 19 Judicial District Court docket number 482224 to seventeen felony counts of simple burglary of an inhabited dwelling The defendant also pled guilty on April 15 1993 in the 19 i Judicial District Court docket numbers 3 92291 and 292 1170 to two counts 2 argues that any evidence seized in connection with this case was fruit of the Fourth Amendment violation and should have been suppressed In response the state asserts the defendant failed to raise this particular issue in connection with his motion to suppress filed and argued in the district court and thus he is precluded from raising the issue for the first time on appeal Alternatively the state asserts that placing a GPS device on the exterior of a vehicle does not constitute a search or seizure and thus there was no constitutional violation in this case Our review of the record in this matter reveals that the state is correct in its assertion that the defendant did not argue below as he has on appeal that the use of the GPS tracking device was in violation of his Fourth Amendment right to privacy In the defendant motion to suppress the evidence the defendant s challenged the issuance of a warrant on mere suspicion At the hearing on the motion to suppress the defendant argued only that the warrant issued allowing the search of his residence after he was arrested on the street for illegal possession of a weapon was invalid as it was not based upon probable cause Defense counsel argued Judge I arguing that the warrant that was signed by the m magistrate was not even based on probable cause enough to search my client residence s of armed robbery and one count of simple burglary of an inhabited dwelling 2 The record reflects on September 15 2008 the defendant through his original trial counsel filed a motion to suppress any confessions and other inculpatory statements In this motion the defendant argued any statements made to the police were not free and voluntary as they were made under the influence of fear duress intimidation menaces threats inducements and promises andor without mover having been advised of his right to remain silent right to counsel etc This motion was never ruled on by the trial court As the proponent of the motion to suppress it was incumbent on the defendant to move for a hearing and to obtain a ruling on his motion prior to proceeding to trial Otherwise it may be considered that the motion has been abandoned See State v Wagster 361 So 849 856 La 1978 On January 12 2009 2d original counsel was replaced by a subsequent attorney who filed the motion to suppress the evidence discussed in this appeal 3 I mean this would be similar to someone stopping him on the street and finding cocaine in his pocket and then going and getting a warrant to search his home to find to search for cocaine The issue raised in this appeal whether the defendant constitutional right s to privacy was violated by the use of the GPS tracking device was not articulated by the defendant or addressed by the state or the court during the hearing below This new basis for the motion to suppress has been raised for the first time on appeal It is well settled that a new basis or ground for the motion to suppress cannot be articulated for the first time on appeal This is prohibited under the provisions of La Code Crim P art 841 since the trial court would not be afforded an opportunity to consider the merits of the particular claim See State v Williams 2002 1030 20020898 La 10 830 So 984 988 02 15 2d The defendant herein is precluded from raising a new basis for his motion to suppress on appeal ASSIGNMENT OF ERROR Z ILLEGAL SENTENCE In his second assignment of error the defendant argues the trial court erred in sentencing him to life imprisonment at hard labor under La R S 1 529 15 Specifically the defendant argues that because the offense of simple burglary of an inhabited dwelling is not punishable by twelve years or more it cannot be used to impose a life sentence under La R 15 S 529 1 Louisiana Revised Statutes 529 1 15 1 A prior ii b to the amendments provided in pertinent part If the third felony and the two prior felonies are felonies defined as a crime of violence under R 14 or any other S 2 B crimes punishable by imprisonment for twelve years or more or any combination of such crimes the person shall be imprisoned for the remainder of his natural life without benefit of parole probation or suspension of sentence 4 2010 The felony convictions considered in the adjudication of the defendant as a third felony habitual offender were for armed robbery and simple burglary of an r inhabited dwelling 21 B 2 14 Armed robbery is a crime of violence See La R S Louisiana Revised Statutes 14 provides w commits 2 62 hoever the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year without benefit of parole probation or suspension of sentence nor more than twelve years Emphasis added Thus contrary to the defendant claims the offense of simple burglary of an inhabited dwelling is s clearly punishable by imprisonment for twelve years which is the maximum sentence Therefore all three of the defendant prior convictions fall within the s purview of La R 15 1 A The sentence of life imprisonment at S 529 1 ii b hard labor without benefit of probation parole or suspension of sentence is not illegal This assignment of error lacks merit For these reasons the conviction and sentence are affirmed AFFIRMED k
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