State Of Louisiana VS John J. Esperance, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUYSTANA COURT OF APPEAL FIRST CIItCUIT N0 2013 KA 0230 STATE OF LOUISIANA VERSUS JOHN J ESPERANCE JR 7udgmentrendered NOV O 1 2013 Q G Appealed from the 22 Judicial District Court in and for the Parish of St Tammany Louisiana Trial Court No 525726 Honorable Peter J Garcia 7udge HON WALTER P REED ATTORNEYS FOR DISfRICf ATTORNEY STATE OF LOUISIANA COVINGTON LA KATHRYN LANDRY SPECIAL APPEALS COUNSEL BATON ROUGE LA CAMERON MARY ATTORNEYFOR MANDEVILLE LA APPELLANT DEFENDANT JOHN ESPERANCE JR BEFORE PETTIGREW McDONALD AND McCLENDON JJ PEITIGREW J The defendant John J Esperance Jr was charged by felony bill of information with possession of a Schedule II controlled dangerous substance CDS cocaine a violation of La R 40 Fie initially entered a plea of not guilty and filed a motion S 967 C to suppress confession identification and physical evidence which the district court denied He then withdrew his former plea and pled guilty pursuant to State v Crosby 338 So 584 588 La 1976 reserving his right to challenge the ruling on the motion Zd to suppress The district court sentenced the defendant to five years at hard labor His sentence was suspended and he was placed on probation for five years As conditions of probation the defendant was ordered to submit to random drug screens complete a drug rehabilitation program and pay a fine of 1 plus costs 00 500 The defendant now appeals arguing that the district court erred in denying his motion to suppress For the following reasons we affirm the defendanYs conviction and sentence FACTS Because the defendant pled guilty the facts of the case were not fully developed According to the police report submitted into evidence in lieu of testimony at the hearing on the motion to suppress on May 23 2012 Detective John Cole and Sergeant Sean McLain with the Slidell Police Department were patrolling areas known for high drug trafFicking When they arrived near the area of Rocket Ranch Trailer Park they obseroed the defendant walking away from the residence of a known drug dealer They followed the defendant as he drove away on his motorcycle and stopped the defendant for speeding When they asked the defendant where he was coming from he stated that he had been at his brother house which was in an area that was not close to the Rocket s Ranch Trailer Park The officers obtained consent to search the defendanYs motorcycle and an unused glass pipe was located After observing the defendant adjust his rolled up right shirt sleeve several times the officers became suspicious that he was concealing contraband pat A search of the elbow area of the defendanYs shirt sleeve was conducted and the detective felt an object that was consistent with crack cocaine The 2 item was removed and was determined to be cocai The defendant was placed under e arrest for the possession of a schedule II CDS and speeding MOTTOIV TO SUPPRESS In his sole assignment af er rthe defe argues that the district court erred danf in denying his motion to suppress Specificaily e eontends that the evidence seized should have been suppressed because the initial pat down was illegal He argues in the alternative that even if the initial pat down were legal the evidence should be suppressed because the plain feel doctrine did not apply He aiso contends that the search was not incident to an arrest When a district court denies a motion to suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the district s court discretion iunless such ruling is not supported by the evidence See State v e Green 94 p 11 La 5 655 So 272 280 As a general rule this 0887 95 22 2d 281 court reviews district court rulings under a deferential standard with regard to factual and other trial determinations while legal findings are subject to a de nouo standard of review State v Hunt 2009 p 6 12 25 So 746 751 1589 La 1 3d 09 The Fourth Amendment to the United States Cand article 1 nstitution 5 of the Louisiana Constitution protect people against unreasonable searches and seizures Subject only to a few well exceptions a search or seizure conducted without a established warrant issued upon probable cause is constitutionally prohibited Once a defendant makes an initial showing that a warrantless search or seizure occurred the burden of proof shifts to the state to affirmatively show it was justified under one of the narrow exceptions to the rule requiring a search warrant La Code Crim P art 703 State v D Johnson 98 p 3 App 1 Cir 12 728 So 885 886 0264 La 98 28 2d The defendant does not contesk that the officers made a legitimate trafFic stop for speeding See Whren v U 517 U 806 810 116 S 1769 1772 135 L 89 S S Ct 2d Ed 1996 T decision to stop an automobile is reasonable where the police have he probable cause to believe that a traffic violation has occurred During a legitimate traffic stop an ofFicer may order the driver to exit the vehicle for the officer safety s 3 Pennsylvania v Mimms 434 U lQb 110 98 S 330 333 54 L 331 S 111 Ct 2d Ed 1977 per curiam In addition an officer may condu a pat down of the driver and any passengers if he has a reascnable suspicior tnat the person is armed and dangerous Arizona v Johnson 555 U 323 326 129 S 781 784 172 L 694 S 327 Ct 2d Ed 2009 In determining the lawfulness of an o frisk of a suspect a court must give s eer due weight not to an o inchoate and unparticularized suspicion or hunch but to s cer the specific reasonable inferences which he is entitled to draw from the facts in light of his experience The re question is not whether the officer subjectively believes he is evant in danger but whether a reasonably prudent nnan in the circumstances would be warranted in the belief that his safety or that of others was in danger Terry v Ohio 392 U 1 27 88 S 1868 1883 20 L 889 The defendant argues that S Ct 2d Ed 1968 the officers did not have a sufficient basis to epnduct a pat down of the defendant The record is devoid of any testimony or evidence that the officers were reasonably in fear of their safety Rather the officers were suspicious that the defendant was concealing contraband because they observed him several kimes adjusting his rolled up right shirt sleeve Thus when the officer conducted by his own admission a search of the pat defendant he was searching for suspected contraband instead of a weapon as required under Terry See La Code Crim P art 215 State v Temple 2002 pp 5 B 1 1895 9 La 9 854 So 856 860 Accord Sergeant McLain subsequent pat 03 2d 862 ngly s search of the elbow area of the defendant shlrt sleeve was arguably not a valid s search under Terry Our analysis under Terry notwithstanding we fnd that the seizure of the cocaine was valid as a search incidenf to a lawful custodial arrest It is well that established searches incident to arrest conduc immedi before formai arrest are valid if ed tely probable cause to arrest existed prior to the search State v Sherman 2005 p 9 0779 The officer scharacterization of his actions as a search has no significance The mere mislabeling of pat his actions does not change the reasonableness or constitutionality of those adions See State v Brumfeld 2005 p 11 n La App 1 Cir 9 944 So 588 597 n writ denied 2007 2500 10 06 20 2d 10 0213 La 9 964 So 353 07 28 2d 4 La 4 931 So 286 29 State v Nlel 412 So 1Q65 1068 La 1982 06 2d z on 2d Prior to the pat search of the defendar sl sieeve the officers observed the s irt t defendant walking a from the residemce of a known d dealer the officers had been vay ug given false informatlon from the deferadant regarding where he had rivera from and pursuant to the defendant eoneer s tk seareh is at the o had found a rcycle s fce glass pipe which they knew was comrrwoniy used for smoksng cocaine The officers also observed the defendant driving well over the pcsted speed limit At this point the officers had sufficient probabie cause to arrest tfne def for the possession of drug ndant paraphernalia a violation of La R 40 S 1023 Cand general speeding a violation of La S 64 R 32 Considering the above we find no error or abuse of discretion in the district court s denial of the motion to suppress the evidence Accordingly this assignment of error is 3 without merit CONVICTION AND SENTENCE AFFIRMEDa z Louisiana Revised Statutes 40 provides in pertinent part i unlawful for any person to use or C 1023 is to possess with intent to use any drug paraphernalia 3 Although the defendant smotion to suppress sought to excfude all confessians identifications and pnysical evidence he appeals only the suppression of the evidence 5
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