State Of Louisiana VS Robert Louis Wilson, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 1712 STATE OF LOUISIANA VERSUS ROBERT LOUIS WILSON JR On Appeal from the 32nd udicial District Court Parish of Terrebonne Louisiana Docket No 545 Division E 233 Honorable Randall L Bethancourt udge Presiding 7oseph L Waitz r Attorneys for Appellee District Attorney State of Louisiana Ellen Daigle Doskey Assistant District Attorney Houma LA Bertha M Hillman Louisiana Appellate Project Thibodaux LA Attorney for Appellant Defendant Robert Louis Wilson Jr BEFORE PARRO WELCH AND KLINE J udgment rendered A 2 9 2013 udge 1William F Kline r retired is serving as judge ad hoc by special appointment of the Louisiana Court Supreme PARRO J The defendant Robert Louis Wilson Jr was charged by bill of information with one count of possession with intent to distribute crack cocaine a violation of LSA S R A 967 40 and one count of possession with intent to distribute powder cocaine a violation of LSA 40 The defendant pled not guilty A hearing was held on SA R 967 a motion to suppress evidence filed by the defendant motion The trial court denied the Following a jury trial the defendant was found guilty of the responsive offenses of attempted possession with intent to distribute crack cocaine and attempted possession with intent to distribute powder cocaine violations of LSA 40 SA R 967 S A R 979 LSA 40 and LSA 14 For each count the defendant was sentenced S R 27 to fifteen years of imprisonment at hard labor with the sentences to run concurrently with each other As a result of prior convictions of possession of cocaine and distribution of cocaine the defendant was subsequently adjudicated a fourth felony habitual offender The fifteen sentences were vacated and the defendant was year resentenced on each count to thirty years of imprisonment at hard labor without benefit of probation or suspension of sentence The sentences were ordered to run concurrently with each other The defendant now appeals designating one assignment of error We affirm the convictions habitual offender adjudications and sentences FACTS On April 26 2009 Agent Russell Madere with the Terrebonne Parish Sheriff s Office and his partner were patrolling near midnight on Jennings Lane in Houma Agent Madere observed the defendant driving in reverse toward him The defendant quickly backed into a driveway and parked Agent Madere effectuated a traffic stop and approached the defendant Upon further discussion and investigation Agent Madere learned that the defendant was driving a rental vehicle and that the defendant had a suspended driver license The defendant was arrested for driving without a valid s license Sergeant Ronald McKay with the Terrebonne Parish Sheriff Office Canine s Division was driving in the area when he heard the traffic stop on his radio Sergeant McKay whose role was to provide backup contacted Agent Madere and arrived at the 2 scene a few minutes later Sergeant McKay swept the rental vehicle with his drug sniffing canine The dog alerted to the presence of narcotics on the driver side of the s vehicle Agent Madere searched the vehicle and found several bags of crack cocaine and powder cocaine in a small compartment next to the steering wheel Agent Madere determined that the amount of crack cocaine was 10 grams and the amount of 82 powder cocaine was 2 grams Agent Madere testified at trial that he searched the 86 vehicle pursuant to an inventory search before having the vehicle towed Agent Madere explained that when his department makes an arrest a towing company is contacted The officer then does an itemized list of the personal contents inside the vehicle in case anything is stolen before the owner can retrieve the vehicle after being towed The rental vehicle was in fact towed and the defendant was issued a traffic citation ASSIGNMENT OF ERROR In his sole assignment of error the defendant argues that the trial court erred in denying his motion to suppress the evidence Specifically the defendant contends that the search of the vehicle was improper as either a search incident to arrest or an inventory search Trial courts are vested with great discretion when ruling on a motion to suppress State v Long 03 La 9 884 So 1176 1179 cert denied 544 U 2592 04 2d S 977 125 S 1860 161 L 728 2005 When a trial court denies a motion to Ct 2d Ed suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court discretion i unless such ruling is not supported s e by the evidence See State v Green 94 La 5 655 So 272 280 0887 95 22 2d However a trial court legal findings are subject to a de novo standard of review See s State v Hunt 09 La 12 25 So 746 751 1589 09 1 3d The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been is or is about to be engaged in criminal conduct State v Belton 441 So 1195 1198 La 2d 1983 cert denied 466 U 953 104 S 2158 80 L 543 1984 Based on S Ct 2d Ed the defendant improper backing of his vehicle on the street Agent Madere had s probable cause to believe a traffic violation had occurred 3 Accordingly he had an j objectively reasonable basis for stopping the defendanYs vehicle See LSA art P Cr C 1 R281 215 LSA 32 S The defendant argues that the subsequent search of his vehicle following the stop cannot be justified as either a search incident to arrest or an inventory search According to the defendant he was handcuffed as he stood in the driveway while his vehicle was being searched Thus the defendant contends that under Arizona v Gant 556 U 332 129 S 1710 173 L 485 2009 the search of the vehicle S Ct 2d Ed incident to arrest was illegal since the defendant could not access his vehicle The defendant further argues that since his vehicle was safe and secure in the driveway the inventory search was invalid because the state failed to show impoundment of the vehicle was necessary Because the warrantless search of the vehicle in the instant matter was valid pursuant to the alert of a drug dog the seizure of the drugs was proper sniffing Neither the search incident to arrest exception to the warrant requirement nor the inventory search exception to the warrant requirement requires analysis for resolution of this matter and as such we address the relevant Fourth Amendment precepts as they pertain to this case An officer may temporarily detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot United States v Sokolow 490 U 1 7 109 S 1581 1585 104 S Ct 2d Ed 1989 L 1 Louisiana Code of Criminal Procedure article 215 states in D 1 pertinent part that in conducting a trafFic stop an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation absent reasonable suspicion of additional criminal activity In determining whether a detention is too lengthy to be considered as an investigatory stop it is appropriate to examine whether the police igently di pursued a means of investigation that was likely to confirm or dispel their suspicions quickly A court making this assessment should consider whether the police are acting in a swiftly developing situation and in such cases the court should not 4 I indulge in unrealistic second United States v Sharpe 470 U 675 686 guessing S 105 S 1568 1575 84 L 605 1985 Ct 2d Ed According to his testimony at the motion to suppress hearing and trial Agent Madere who had been a narcotics officer for over four years was on a street in a high crime area when he observed the defendant vehicle acking toward him When the s defendant backed into a driveway and got out of his vehicle Agent Madere activated his lights announced his presence and attempted to stop the defendant with verbal commands The defendant ignored Agent Madere and continued to walk away Agent Madere hurriedly approached the defendant explained why he stopped him and asked for his s driver license When the agent took the license the defendant became argumentative agitated and excited For safety reasons Agent Madere handcufFed the defendant and ran a license check Upon discovering the license was suspended Agent Madere promptly arrested the defendant A short period of time later Sergeant McKay in a backup capacity arrived at the scene with his drug canine unit sniffing Upon an exterior sweep of the vehicle khe canine alerted to the presence of drugs Agent Madere testified at trial that from his experience and training he regularly observes the use of rental vehicles for transporting narcotics Based on the foregoing Agent Madere clearly had the right to conduct a routine license check and to engage the defendant in conversation as he did so See State v Lopez 00 La 10 772 So 90 92 per curiam 0562 00 30 2d 93 Moreover when Agent Madere learned the defendant was driving without a valid driver license he s placed the defendant under arrest A peace officer may arrest a person without a warrant when the peace officer has reasonable cause to believe that the person to be arrested has committed an offense LSA art 213 P Cr C 3see State v Sherman 0779 05 La 4 931 So 286 295 LSA 32 See also State 06 2d 97 R 402 SB 1 v Billiot 370 So 539 543 La 1979 cert denied 444 U 935 100 S 284 62 2d S Ct 2d Ed L 194 1979 In determining whether the ruling on the defendanYs motions to suppress was correct an appellate court is not limited to the evidence adduced at the hearing on the motion The court may consider all pertinent evidence given at the triai of the case State v Chopin 372 So 12Z2 1223 n La 1979 2d 2 3 Reasonable cause under LSA art 213 is consonant with the probable cause concept See State P Cr C v Weinberg 364 So 964 969 La 1978 2d 5 The record suggests that the defendant was not detained for any length of time before the vehicle was searched Shortly after the defendanYs arrest Sergeant McKay had arrived at the scene with his canine unit The use of a drug dog within detection minutes of the stop afforded Agent Madere the opportunity to pursue a means of investigation that was likely to confirm or dispel suspicions quickly regarding the presence of drugs during which time it was necessary to detain the defendant See Sharpe 470 U at 686 105 S at 1575 State v Miller 00 La 10 S Ct 1657 O1 26 798 SoZd 947 949 per curiam where a fifty investigatory stop was 51 minute three found to be reasonable The dog sniffing around the e of the vehicle did not s erior itself constitute a search United States v Place 462 U 696 707 103 S 2637 S Ct 45 2644 77 L 110 1983 and its subsequent alert consistent with the 2d Ed defendanYs agitation and excitement gave Agent Madere probable cause to search for contraband See Lopez 772 So at 93 2d 97 19 9 699 So 879 per curiam 2d see also State v Kalie 96 La 2650 When the dog alerted to the presence of narcotics Agent Madere searched the vehicle and found the cocaine In sum we find Agent Madere had probable cause to first stop the defendant and then arrest him for respectively a traffic violation and driving with a suspended license When the canine unit alerted to the presence of narcotics in the vehicle Agent Madere then had probable cause to search the vehicle While Agent Madere testified at trial that it was customarily the policy of his department to tow a vehicle following the arrest of the sole occupant of that vehicle we do not pass on the validity ve of the non inventory search since the seizure of the cocaine was proper despite the ostensible inventory search or search incident to arrest We find no abuse of discretion or error in the trial court sdenial of the motion to suppress Accordingly the assignment of error is without merit CONVICTIONS HABITUAL OFFENDER SENTENCES AFFIRMED 6 ADJUDICATIONS AND
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