State Of Louisiana VS Johnny Robertson
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NOT DE FOR PUBLICATION IGNATED STATE OF LOL ISIANA Rr COL OF PPEAL iCIi FIA C IIPT dBER 1ZT1 20i3 I 582 T A STATE OF LO ISIAN VERS S NNY JOF ROBERTSON Judgment Rendered N 0 4 2013 Appealed from the Second Twenty Jutticial District Court C In and for the Parish of Washington State of Louisiana Docket Number 12 CR8 116397 Division G Honorable Hillary J Crain Judge Presiding Walter Reed Counsel for Plaintiff Appellee District Attorney State of I ouisiana Franklinton LA James Adair State of I ouisiana Assistant District Attonc ey Franklinton LA Kathryn Landry Special Appeals Counsel Baton Rouge LA Bertha M Hillman Louisiana Appellate Project Counsel for Defendant Appellant Johnny Robertson Thibodaux LA BEFORE PARRO GUIDR AND DRAKE 3J Y GUIDRY J The defendant Johnny Robertson was charged by bill of information with possession with intent to distribute cocaine a violation of La R 40 S 967 1 A He pled not guilty The defendant filed a motion to suppress the evidence and following a hearing on the matter the motion was denied Thereafter the defendant withdrew his prior plea of not guilty and at a Bovkin hearing entered a plea of guilty to the charge reserving his right to challenge the trial court ruling on the s motion to suppress See State v Crosbv 338 So 584 La 1976 The defendant 2d also pled guilty not under Crosb to distribution of cocaine a violation of La S 967 R 40 a charge under a different docket number and apparently in a 1 A separate bill of information not made part of the appellate record For each of the convictions the defendant was sentenced to ten years of imprisonment at hard labor Eight years of each sentence was suspended and the defendant was placed on five years of probation for each sentence Also for each sentence the trial court ordered the defendant to pay a fine The sentences were ordered to 500 1 run concurrently The defendant now appeals his possession with intent to distribute cocaine conviction designating one assignment of error We vacate the conviction and sentence and remand to the trial court FACTS The following facts are developed from the testimony of two police officers at the defendant motion to suppress hearing According to the testimony of s Sergeant Michael Neal with the Louisiana State Police narcotics division on July 12 2011 he and fellow officers made a sweep of individuals in the Washington Parish area who had outstanding warrants The defendant had an arrest warrant for distribution of cocaine Four or five officers including Sergeant Neal went to the s defendant home to serve the arrest warrant The defendant in his early fifties z drove up alone in a black vehic When he got out of the vehicle the officers le approached him and informed him of the arrest warrant Sergeant Neal placed himself between the defendant and the black vehicle arrested the defendant and handcuffed him According to Sergeant Neai he got between the defendant and the vehicle because the defendant had rnade a motion as if he were trying to get back into the vehicle Sergeant Neal testi that after the defendant was arrested ed Senior State Trooper Ron Whitaker Jr searched the black vehicle Trooper Whitaker testified at the motion to suppress hearing that he assisted Sergeant Neal in serving the arrest warrant on the defendant According to Trooper Whitaker there were four or five officers who went to the defendant house s Trooper Whitaker stated that when Sergeant Neal approached the defendant and spoke to him the defendant body language suggested he was trying to get back s into the vehicle Sergeant Neal walked between the defendant and the vehicle According to Trooper Whitaker as Sergeant Neal began placing the defendant under arrest the trooper began searching the black vehicle When asked by the prosecutor if he searched the vehicle before during or after the defendant was handcuffed Trooper Whitaker responded It was all simultaneous Trooper Whitaker searched the front passenger seat center console glove compartment and under the front seat Inside the center console he found a steak knife and a clear plastic bag with a white substance Trooper Whitaker stated it was obvious the substance was cocaine He seized the plastic bag which contained 13 81 grams of cocaine ASSIGNMENT OF ERROR In his sole assignment of error the defendant argues the trial court erred in denying the motion to suppress the evidence seized from the vehicle Specifically the defendant contends that the warrantless 3 search of the vehicle was not conducted pursuant to any of the well exceptions to the warrant recognbzed requirement and was therefora illegal The defendant notes specifically that it was not a valid search incident to arrest because he was already removed from the vehicle and handcuffed at the time of the searcin Trial courts are vested with great diseretion when ruling on a motion to suppress State v 2592 Lon 03 La 04 5 9 884 So 1176 1179 cert 2d denied 544 U 977 125 S 1860 161 L 728 2005 When a trial court S Ct 2d Ed denies a motion to suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court discretion iunless s e such ruling is not supported by the evidence See State v Green 94 p 11 0887 La 5 655 So 272 280 However a trial court legal findings are 95 22 2d 81 s subject to a de novo standard of review See State v Hunt 09 p 6 1589 La 09 1 12 25 So3d 746 751 The defendant contends that any search of the vehicle incident to arrest was illegal under Arizona 2009 v Gant 556 U S 332 129 S Ct 2d Ed 1710 173 L 485 The defendant also contends the drugs could not have been seized pursuant to a valid inventory search The Fourth Amendment to the United States Constitution and Article I 5 of the Louisiana Constitution protect people against unreasonable searches and seizures Subject only to a few well exceptions a search or seizure established conducted without a 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 State v YounQ 06 p 5 La App lst Cir 9 943 So 0234 6 06 15 2d 1118 1122 writ denied 06 La 5 956 So 606 see La C Cr P art 2488 07 4 2d 4 I 03 Probable cause to believe contraband is present is necessary to justify a warrantless search See State v Warren OS p 10 La 2 949 So 2248 07 22 2d 1215 1224 Mere probable cause does not provide the exigent circumstances necessary to justify a search w a warrant Probable cause is defined as ithout reasonable grounds for belief supported by less than prima facie proof but more than mere suspicion This determination must be made from the totality of the circumstances based on the objective facts known to the officer at the time In determining whether sufficient exigent circumstances exist to justify the warrantless entry and search or seizure the court must consider the totality of the circumstances and the inherent necessities of the situation at the time Further the scope of the intrusion must be circumscribed by the exigencies that justified the warrantless search See Warren OS at p 10 949 So at 1224 2248 2d Exigent circumstances may arise from the need to prevent the offender escape minimize s the possibility of a violern confrontation that could cause injury to the officers and the public and preserve evidence from destruction or concealment State v Brisban 00 p 5 2 809 So 923 927 3437 La 26 02 2d 28 Under the automobile exception to the warrant requirement a police officer may search a vehicle based on probable cause alone The United States Supreme Court in Maryland v Dyson 527 U 465 466 119 S 2013 2014 144 S 67 Ct 2d Ed L 442 1999 per curiam held that under the automobile exception there is no separate exigency requirement Further if probable cause justifies the search of a lawfully stopped vehicle it justifies the search of every part of the vehicle United States v Ross 456 U 798 825 102 S 2157 2173 72 L 572 S Ct 2d Ed 1982 s In Gant 556 U at 351 129 S at 1723 the United States Supreme S Ct Court held that the police may search a vehicle incident to a recent occupant s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search o it is reasonable to believe the vehicle contains evidence r of the offense related to the arrest We note initially there would have been no reasonable belief that the vehicle contained evidence of the offense related to the arrest While the defendant was being arrested on an outstanding warrant for distribution of cocaine the warrant being served was dated November 15 2010 and the defendant was arrested for the instant offense about eight months later on July 12 20ll Sergeant Neal understanding was that the arrest warrant was based s on the defendant shaving sold cocaine to an undercover informant There was no information provided on how or where the drug deal occurred i in a vehicle on e foot or in a house Moreover the police had no information on who owned the vehicle the defendant was driving when he was arrested Trooper Whitaker in fact testified he thought it was the defendant wife vehicle In any event given s s the amount of time between the defendant drug sale with an informant and his s arrest for that offense the police would have had no probable cause to believe the vehicle the defendant was driving contained evidence of that nearly eight month old offense Had a search warrant for the vehicle been issued at the same time as the arrest warrant it would have been well beyond stale See La C Cr P art C 163 a search warrant cannot be lawfully executed after the expiration of the tenth day after its issuance The closer issue is whether the search of the vehicle incident to the s defendant arrest was valid given the defendant restraint at the time of the s search New York v Belton 453 U 454 101 S 2860 69 L 768 S Ct 2d Ed 1981 held that police may search the passenger compartment of a vehicle and 6 any containers therein as a contemporaneous incident of a recent occupant lawful s arrest In reverting to a more narrow reading of Belton the Gant court found the search of the vehicle was illegal since Gant handcuffed and locked in the back seat of a police unit could not have accessed his vehicle at the time of the search Gant 556 U at 346 129 S at 1721 In the instant case while the S 51 Ct 24 defendant had not yet been placed in a police unit at the time of the vehicle search he was at the time of the search the sole occupant of the vehicle handcuffed and standing some distance from the vehicle and hemmed in by up to five police officers Under these facts the defendant was clearly not within reaching distance of the passenger compartment at the time of the search Accordingly we find that under Gant Trooper Whitaker conducted an illegal search of the vehicle Sergeant Neal testified at the motion to suppress hearing that he was not in a marked police unit but the police at the scene were wearing clothes identifying them as police officers When the defendant drove up he exited the vehicle and approached the officers leaving his driver door open The police informed the s defendant who they were and why they were there Accarding to Sergeant Neal the defendant appeared to move back toward the direction of the vehicle Not wanting the defendant to get back into the vehicle Sergeant Neal placed himself between the defendant and the open driver door Sergeant Neal then arrested the s defendant and handcuffed him with his hands behind him Sergeant Neal stated the defendant did not resist his arrest in any way As Sergeant Neal stayed with the handcuffed defendant along with about three other officers nearby Trooper Whitaker walked from the passenger side of the vehicle to the driver side s searching inside the vehicle vehicle to make a He passed behind Sergeant Neal and began According to Trooper Whitaker he searched the sweep to make sure there was no weapons contraband anything that could hurt any fus on the scene Iat the time of the search at hus least two officers were betweeri the defendanti and the vehicle Moreover despite Trooper Whitaker statemerit regarding the simultaneity of the defendant arrest s s and the trooper searck the vehicle S veal testir made it clear that s iof rgsani s iony Trooper Whitaker had only begur walking around the defendant svehicle after the defendant had already been arrested ar ha d idauffed Based on the foregoing we find that Trooper Whitaker search of the s vehicle cannot be justified as a valid search incident to arrest While the defendant was not locked in the back of a police unit like Gant at the time of the vehicle search the scene was nevertheless secure The defendant had been moved away from his vehicle and handcuffed L to three or four officers remained around or p near the vehicle and the defendant while another officer searched inside of the vehicle Under these circumstances the defendant could not have accessed the vehicle to retrieve weapons or evidence at the time of the search See Gant 556 S U at 335 129 S at 1714 Ct Finally we note that the search of the vehicle was not proper pursuant to a valid inventory search The vehicle as not impounded and according to Trooper Whitaker the vehicle was locked and secured on the defendant property s See State v Brumfield 560 So 534 La App lst Cir writ denied 565 So 942 2d 2d La 1990 The trial court erred in denying the motion to suppress Accordingly the judgment of the trial court on the motion to suppress the evidence is reversed For the possession vvith intent to distribute cocain convic the defendant ion s convictron and sentence are vacated and the matter s remanded to the trial court for further proceedings s TRIAL COURT JUDGMEIVT U MOTION TO SUPPRESS NYING REVERSED CONVICTION AND SEiV FOR POSSESSION WITH TENCE INTENT TO DISTRIBUTE COCAI VACATE AND REMANDED TO TE D TRIAL COURT 9
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