STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-235
STATE OF LOUISIANA
VERSUS
ALFONZO JERMAINE JOHNLOUIS
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 07-1162 HONORABLE EDWARD M. LEONARD, JR., DISTRICT JUDGE **********
BILLY HOWARD EZELL JUDGE
1 Court composed of Marc T. Amy, Billy Howard Ezell, and James T. Genovese, 2 Judges.
CONVICTION FOR POSSESSION OF COCAINE AFFIRMED; SENTENCE FOR POSSESSION OF COCAINE AMENDED; CONVICTION FOR TRANSACTIONS INVOLVING PROCEEDS FROM DRUG TRANSACTIONS SET ASIDE AND VACATED; REMANDED WITH INSTRUCTIONS.
J. Phillip Haney District Attorney 300 Iberia Street, Suite 200 New Iberia, LA 70560 (337) 369-4420 Counsel for Appellee: State of Louisiana William Jarred Franklin Louisiana Appellate Project 3001 Old Minden Road Bossier City, LA 71112 (318) 746-7467 Counsel for Defendant/Appellant: Alfonzo Jermaine Johnlouis
Jeffrey J. Trosclair Assistant District Attorney Sixteenth Judicial District Court 500 Main Street, Fifth Floor Franklin, LA 70538 (337) 828-4100 Counsel for Appellee: State of Louisiana
Alfonzo Jermaine Johnlouis Louisiana State Penitentiary Hickory 1 Angola, LA 70712 EZELL, JUDGE.
The Defendant, Alfonzo Jermaine Johnlouis, was charged by bill of information
filed on February 22, 2007, with possession of at least 28 but less than 200 grams of
cocaine, in violation of La.R.S. 40:967; possession of marijuana, in violation of
La.R.S. 40:966; and transactions involving proceeds from drug offenses, in violation
of La.R.S. 40:1041. A plea of not guilty was entered on March 7, 2007. On
September 17, 2007, the charge of possession of marijuana was severed. Trial by jury
commenced on September 18, 2007, and the jury subsequently found the Defendant
guilty on the remaining two counts.
A bill of information charging the Defendant as an habitual offender was filed on
September 19, 2007. The Defendant was arraigned on January 30, 2008, and denied
the allegations. On February 15, 2008, the Defendant was adjudicated a second
felony offender and sentenced to fifty years at hard labor and to pay a fine of
$75,000.00 on the charge of possession of at least 28 but less than 200 grams of
cocaine. On the charge of transactions involving proceeds from drug offenses, he
was sentenced to serve ten years at hard labor and to pay a fine of $20,000.00. The
sentences and fines were ordered to run concurrently with each other. The trial court
also ordered that the sentences run concurrently with a parole violation in docket
number 99-1470.
A “Petition for Appeal” was filed on March 12, 2008, and subsequently granted.
The Defendant is now before this court asserting three assignments of error. Therein,
the Defendant contends there is insufficient evidence to prove he committed the
offenses at issue, the trial court erred in denying his motion to suppress, and the
sentences imposed are excessive.
1 FACTS
Police encountered the Defendant and his girlfriend, Semiko Brown, in the parking
lot of Wrench Masters, an auto shop that was closed at the time. During a pat down,
police found a large sum of cash in the Defendant’s pocket. Police subsequently
searched the Defendant’s car and found 60.4 grams of cocaine under the driver’s seat.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors
patent on the face of the record. After reviewing the record, we find there are three
errors patent.
The bill of information contains an error in the citation for the charge of
transactions involving proceeds from drug offenses. The bill of information provides
this charge is a violation of La.R.S. 40:1049, instead of La.R.S. 40:1041. However,
the erroneous citation of a statute in the charging instrument is harmless error as long
as the error did not mislead the defendant to his prejudice. La.Code Crim.P. art. 464.
The Defendant does not allege any prejudice because of the erroneous citation.
Accordingly, this court finds that error is harmless.
Next, the trial court imposed an illegal sentence. In addition to the terms of
imprisonment, the trial court imposed a fine of $75,000.00 on the enhanced sentence
for the conviction of possession of cocaine, and a fine of $20,000.00 on the enhanced
sentence for the conviction of transactions involving drug proceeds; the trial court
ordered the $20,000.00 fine to run concurrently with the $75,000.00 fine.
In State v. Dickerson, 584 So.2d 1140 (La.1991), the supreme court held that the
fine and default provisions of his sentence should be deleted:
[Louisiana Revised Statutes] 15:529.1 requires that the sentencing judge vacate the original sentence and resentence the defendant as a multiple offender. In resentencing, the judge must impose a sentence authorized by La.Rev.Stat. 15:529.1. That statute does not authorize the imposition of a fine, but
2 only provides for enhanced sentences relating to the term of imprisonment. The trial judge was therefore without authority to impose a fine on resentencing under La.Rev.Stat. 15:529.1.
Accordingly, the fine and default provisions of defendant’s sentence are deleted.
In light of the Dickerson case and La.R.S. 15:529.1, the court amends the Defendant’s
sentences to delete the fine provisions and instructs the trial court to make an entry
in the minutes of court to reflect the amendment.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, the Defendant contends there was insufficient
evidence to prove his guilt beyond a reasonable doubt for the offenses of possession
of at least 28 but less than 200 grams of cocaine and financial transactions involving
proceeds from drug offenses.
In reviewing the sufficiency of the evidence to support a conviction for negligent
homicide, an appellate court in Louisiana is controlled by the standard of review
adjudged by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),
“[T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).
State v. Desoto, 07-1804, p. 7 (La. 3/17/09), 6 So.3d 141, 146 (alteration in original).
On December 20, 2006, at approximately 11:30 p.m., police officer Kirk Dunn
and a trainee drove past Wrench Masters auto repair shop. Dunn saw two cars in the
parking lot and a man crouched down by the tire of one of the cars. Since the
business closed at approximately 5:00 p.m., Dunn and the trainee returned to the
business and initiated contact with the Defendant and his girlfriend, Semiko Brown.
When Dunn and the trainee arrived at Wrench Masters, they were approached by
3 Brown. Brown informed Dunn that her car had been repaired, and she and the
Defendant were there to pick it up. Her keys were supposed to be on one of the tires.
Dunn verified that Brown owned the car. During that time, the Defendant
continued to look for Brown’s keys. When Dunn approached the Defendant, the
Defendant corroborated Brown’s story and said he “brought” her to Wrench Masters.
Dunn testified that the Defendant was nervous, stuttering, shaking, and would not
make eye contact with him.
The driver’s door of the Defendant’s car, which the Defendant and Brown had
arrived at Wrench Masters in, was open. Dunn testified that when he passed near the
car, he smelled a strong odor of burnt marijuana. On direct examination, Dunn
testified the Defendant did not respond when asked about the odor. However, on
cross-examination, he testified that the Defendant denied having smoked marijuana.
Dunn testified that because the Defendant was nervous and uncooperative, he
conducted a pat down of the Defendant. Dunn detected a large bundle in one of the
Defendant’s pocket. Dunn testified that when asked what the object was, the
Defendant refused to answer. Thus, Dunn removed what turned out to be a large wad
of money from the Defendant’s pocket. Dunn did not know how the Defendant got
the money and testified that the Defendant said he was not employed at that time.
Dunn admitted he did not include information about the Defendant’s employment
status in the police report.
Dunn subsequently searched the Defendant’s car and found two rocks of crack
cocaine under the driver’s seat. As a result, the Defendant was arrested for
possession of crack cocaine, but Brown was not. Dunn testified that he did not
determine who drove the Defendant’s car to Wrench Masters. Additionally, he did
not see anyone handle the drugs, and he could not say they did not belong to Brown.
4 Semiko Brown testified that she was the Defendant’s girlfriend. She then admitted
that on November 21, 2006, she had been charged with possession with intent to
distribute Lortab.1
Brown testified that she had the Defendant’s car from approximately 10:00 a.m.
until 11:18 p.m. on the date in question. She did not know where the Defendant was
from 10:00 a.m. until 3:00 p.m. At approximately 10:30 p.m., the Defendant met her,
and she drove to Wrench Masters.
Brown testified that she drove the Defendant’s car to Wrench Masters to pick up
her car, the key to which was supposed to be left on a tire. After she was at the shop
for approximately two minutes, the police arrived and asked what she was doing.
While she spoke to police, the Defendant looked for the key. She then gave an officer
her registration and driver’s license. The officer then said he smelled burnt marijuana
coming from the Defendant’s vehicle.
Brown testified that she never saw the Defendant handle any illegal narcotics
while he was with her. She also acknowledged that Dunn did not ask if the drugs he
found under the seat of the Defendant’s car were hers. Brown testified that the
Defendant was in the back of the police car when the drugs were found, and the drugs
were found the third time the car was searched. She further testified that police said
they would let her go if she wrote a statement.
On cross-examination, Brown was questioned about the drugs as follows:
Q. And, during that questioning, you admitted that you didn’t - that wasn’t your drugs that were in the car, correct?
A. Can I plead the fifth.
Q. During that questioning, at that time, at the time that I questioned you a week or so ago, you said that wasn’t - it wasn’t your drugs, correct? At that time?
1 This offense occurred before those at issue in the case at bar.
5 A. I plead the fifth.
Q. That’s not my question. My question is, at that particular time that I questioned you -
....
Q. I’m going to ask you again, and I’m going to get the date so that it’s accurate, on August 23, 2007, you testified under oath, correct?
A. Yes.
Q. You raised your right hand and you swore to tell the truth, correct?
Q. You testified that day?
Q. You testified that those drugs that were found in that car were not your drugs, correct?
A. It was not ours.
Q. You said, you didn’t know anything about those drugs, correct?
A. I didn’t know.
Q. What’s that?
Q. You didn’t know anything about it?
A. No.
Q. Wasn’t your drugs, correct?
A. It wasn’t ours.
Q. Those drugs were not for you, correct?
Q. - own or possess those drugs.
6 Q. Okay. You didn’t even know they were in there?
Q. So you can’t say who they were for?
A. Yes, I can.
Q. You never [sic] nobody, anybody put them in that car, correct?
A. ‘Cause I had the car that day.
Q. That day. You didn’t put [sic] in that car, right?
Q. They weren’t for you, correct?
Q. You didn’t even know it was in there, right?
A. Right.
Q. Okay. So there’s no way you can come into court today and say, those drugs were not for Mr. Johnlouis?
A. It wasn’t.
Q. Just because you believe that, because you’re his girlfriend?
A. ‘Cause I know.
Q. How do you know if you didn’t see anybody put them in there?
A. It wasn’t in there.
Q. You don’t want it to be his because you don’t want to see him [sic] jail, correct?
Q. You don’t want to see him in jail, correct? Is that a fair statement?
A. It wasn’t his. It wasn’t his.
Q. Yes or no? Yes or no? You do not want to see Mr. Johnlouis in jail, yes or no?
A. No response.
7 ....
BY THE WITNESS (MS. BROWN):
No.
On redirect examination, she testified that she knew the Defendant did not put the
drugs under the car seat.
Brown also testified that the money found in the Defendant’s pocket was not hers
and, during the time she knew the Defendant, he did not have a job.
Kevin Ardoin, a forensic chemist employed by the Acadiana Crime Lab, was
qualified as an expert in forensic chemistry. Ardoin testified that the material seized
from the Defendant’s car was 60.4 grams of crack cocaine.
Possession of at Least 28 but Less Than 200 Grams of Cocaine
To support a conviction for possession of at least 28 but less than 200 grams of
cocaine, the State had to prove the Defendant was in possession of cocaine in the
quantity stated and that he knowingly possessed it. La.R.S. 40:967(F)(1)(a).
“Possession of narcotic drugs can be established by actual physical possession or
by constructive possession.” State v. Hongo, 06-829, p. 4 (La.App. 3 Cir. 12/6/06),
944 So.2d 856, 859 (quoting State v. Davis, 05-543, p.5 (La.App. 3 Cir. 12/30/05),
918 So.2d 1186, 1190, writ denied, 06-587 (La. 10/13/06), 939 So.2d 372).
The supreme court in State v. Toups, 01-1875, pp. 3-4 (La.10/15/02), 833 So.2d 910, 913, summarized the law on constructive possession as follows:
A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control it. . . . Guilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug. . . .
8 State v. Trahan, 425 So.2d 1222 (La.1983) (citing State v. Smith, 257 La. 1109, 245 So.2d 327, 329 (1971)). However, it is well settled that the mere presence in an area where drugs are located or the mere association with one possessing drugs does not constitute constructive possession. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337; State v. Bell, 566 So.2d 959 (La.1990).
A determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Hughes, 587 So.2d 31, 43 (La.App. 2 Cir.1991), writ denied, 590 So.2d 1197 (La.1992); see also Bujol v. Cain, 713 F.2d 112 (5 Cir.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 726, 79 L.Ed.2d 187 (1984) (listing above factors as well as a sixth factor: “evidence that the area was frequented by drug users”).
State v. Jacobs, 08-1068, pp. 3-4 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, 318 (alteration
in original). “[S]ince knowledge is a state of mind, it need not be proven as fact, but
rather may be inferred from the circumstances.” State v. Major, 03-3522, pp. 8-9 (La.
12/1/04), 888 So.2d 798, 803 (citation omitted).
In State v. McGraw, 43,778 (La.App. 2 Cir. 12/10/08), 1 So.3d 645, the defendant
was convicted of attempted possession of hydrocodone. Police stopped the defendant
for making an improper turn at an intersection. The officer took possession of a cup
located in the cup holder of the defendant’s vehicle and determined that it smelled
like alcohol. The officer arrested the defendant for the improper turn and placed him
9 in the patrol car. The officer then searched the driver’s side of the vehicle and found
marijuana in the driver’s door pocket and hydrocodone in the middle console. A
search of the defendant revealed five hundred dollars in cash. The passenger was
arrested because there was an outstanding warrant for his arrest, and he attempted to
dispose of a rock of crack cocaine.
The court noted that because the hydrocodone was not in the actual possession of
the defendant or the passenger, the State was required to prove the defendant
constructively possessed the pill. The court pointed out that the facts showed the pill
was in the middle console of a car owned by the defendant. The console was in arm’s
reach of the defendant, raising an inference that it was he who had complete control
over the pill hidden in his vehicle. Furthermore, the discovery of other drugs in the
car and the large sum of cash found on his person lead to an inference of his
involvement in illegal drug activity. The evidence showed the defendant had access
to the two areas where drugs were found and was in the car with a passenger who was
carrying drugs. The court held, based on this evidence, the jury could have
reasonably concluded the defendant committed an act tending directly toward the
accomplishment of his intent, possession of hydrocodone.
In State v. Ankrum, 573 So.2d 244 (La.App. 1 Cir. 1990), the court concluded the
evidence was sufficient to support possession of cocaine convictions for all three
occupants of a vehicle where cocaine was found. Police received a tip that
defendants were in possession of cocaine. The tip described the defendants’ vehicle
and the general location of the vehicle. The police spotted the vehicle and started
following the car in an unmarked police unit. After the rear-seat passenger looked
back and apparently recognized the police unit, the car accelerated and ran a stop
10 sign. The officer activated his lights and siren, and a chase ensued during which the
driver committed several more traffic violations.
The vehicle was ultimately stopped, and all of the occupants became involved in
physical altercations with the police. The car was later searched at the police station
where a clear plastic bag containing marijuana was found on the front passenger seat,
and a clear bag of rock cocaine was found on the back right floorboard under papers
and other debris. The court noted that the cocaine was not cleverly concealed or in
any way out of reach of each defendant and that the record supported a finding that
all three defendants had constructive possession of the cocaine. The court affirmed
the convictions, concluding that a rational trier of fact could have found beyond a
reasonable doubt that each defendant had dominion and control over the cocaine and
knowingly possessed it.
The case at bar involves constructive possession, as no one was found in actual
possession of the drugs located under the driver’s seat of the Defendant’s car.
Evidence regarding who drove the Defendant’s car to Wrench Masters was
inconsistent. Brown testified that she drove, and Dunn believed the Defendant drove
because the Defendant stated he “brought” Brown to Wrench Masters. Despite this
inconsistency, the evidence at trial indicates that 60.4 grams of crack cocaine was
found in a car owned by the Defendant. The other occupant of the car, Brown,
testified that the drugs did not belong to “us.” However, the Defendant had access
to the area where the drugs were found whether he drove the car or was a passenger.
Additionally, a large of sum of cash was found in the Defendant’s pocket, and he did
not have a job. Furthermore, the Defendant was nervous during his encounter with
Dunn. Based on the testimony presented, a jury could conclude that the Defendant
constructively possessed the crack cocaine found inside his car and infer his guilty
11 knowledge from these circumstances. Accordingly, the Defendant’s conviction for
possession of at least 28 but less than 200 grams of cocaine is affirmed.
Transactions Involving Proceeds from Drug Offenses
The Defendant was also convicted of transactions involving proceeds from drug
offenses. Louisiana Revised Statute 40:1041(A) provides that:
It is unlawful for any person knowingly or intentionally to conduct a financial transaction involving proceeds known to be derived from a violation of R.S. 40:966 et seq. when the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership, or the control of the proceeds known to be derived from such violation or to avoid a transaction reporting requirement under state or federal law.
The only reported case involving a sufficiency review for this offense is State v.
Edwards, 06-850 (La.App. 3 Cir. 6/13/07), 963 So.2d 419. In that case, police
received information from confidential informants for approximately ten years that
indicated the defendant was transporting drugs from Baton Rouge to New Iberia for
street sale. The defendant was the center of an investigation on May 22, 2004, that
involved mobile surveillance. The detectives conducting surveillance received
information that the defendant had been conducting illegal narcotic activity at an
abandoned residence located at 506 Corrine Street. The area was known to have a
high rate of drug trafficking.
After the defendant arrived on the scene, two officers witnessed what appeared to
be the defendant making narcotics exchanges and watched him store narcotics under
a house and in the pipe of a metal clothesline. As officers moved in on the scene, the
defendant initially fled but then ran toward an officer, who arrested him.
Approximately three hundred dollars was seized from the defendant’s person, but
no drugs or weapons were found on him. One officer retrieved plastic bags from
inside the metal pipe and from underneath the house, which were tested and
determined to both contain crack cocaine.
12 The defendant was convicted of conducting a financial transaction involving
proceeds known to be derived from a violation of La.R.S. 40:966, et seq. This court
reversed the defendant’s conviction, finding the following:
The Defendant argues that no evidence was presented by the State to prove that the money confiscated from his person was the result of drug proceeds. The Defendant adds that no controlled buys were conducted, no drugs were seized from his person, no other person was stopped who possessed drugs, and no confidential informants were present at trial. Further, the Defendant maintains that $305.00 is not an unusually large sum of money and does not automatically prove a sale of narcotics.
Detective Davis testified that other than the two transactions he saw which are described above, he had no proof that the money found on the Defendant was from drug proceeds. He further testified that he did not see the other person put drugs in his pocket, nor did he see the Defendant counting out money.
We were unable to find any jurisprudence which has applied this statute to the evidentiary facts of the case. However, because no money was seen changing hands, and because $305.00 is not an unusually large amount of cash, we find that the evidence is insufficient to find the Defendant guilty of this charge. Therefore, we overturn the Defendant’s conviction for count two, transaction involving proceeds from a drug offense, in violation of La.R.S. 40:1049.
Id. at 426.
In the case at bar, there was no testimony regarding money changing hands and no
testimony regarding the amount of cash on the Defendant’s person.2 Based on the
lack of evidence and this court’s ruling in Edwards, we find the evidence was
insufficient to convict the Defendant of transactions involving proceeds derived from
drug offenses.
2 A photograph of the cash was admitted into evidence as State’s Exhibit 2 and there was well in excess of $1,000.00 dollars. The actual cash was published to the jury.
13 ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, the Defendant contends the trial court erred in
denying his motion to suppress. The Defendant filed a motion to suppress on March
12, 2007. Therein, he sought to suppress all evidence seized by police.
The testimony at trial did not vary greatly from that at the hearing on the motion
to suppress. As a result, we will not repeat all the testimony presented at the hearing,
but will set forth additional information provided at that time.
Dunn testified that as Brown initially approached him, the Defendant walked
toward his own car. Dunn eventually approached the Defendant’s car in order to
speak to him, and the Defendant was seated in the driver’s seat at that time. Upon
approaching the Defendant’s car, Dunn detected the odor of burnt marijuana. Dunn
told the Defendant he smelled burnt marijuana and asked if anyone had been smoking
in the car. The Defendant did not respond and became nervous. In his report, Dunn
said the Defendant said no one had been smoking.
Dunn patted down the Defendant and removed a bundle of cash from his pocket
because he thought it might be a weapon. The Defendant was then handcuffed for the
officer’s safety and placed in the back of Dunn’s patrol car.
Dunn then advised Brown that he smelled burnt marijuana and asked if anyone had
been smoking. Brown began crying, which aroused Dunn’s suspicions. Dunn then
went back to the Defendant and asked if there was anything inside the car that he
needed to know about. The Defendant did not respond. Dunn then searched the
Defendant’s car.
During the search, Dunn located two cookies of crack cocaine under the driver’s
seat. The search occurred after the trainee agreed that he smelled burnt marijuana.
14 Dunn further testified that the officers who later responded to the scene agreed that
the car smelled of marijuana.
After Dunn found the crack cocaine, he advised the Defendant of his Miranda
rights and that he was under arrest. The Defendant continued to remain silent, and
Dunn searched the Defendant’s person. Inside the Defendant’s jacket pockets, Dunn
found a “granulated white powdery substance” and a small green leafy substance that
he believed was marijuana.
Brown denied crying when Dunn asked if anyone had been smoking marijuana.
Brown further testified that the Defendant was handcuffed and placed in back of the
patrol car before his vehicle was searched.
Brown testified that the Defendant’s vehicle was running, and Dunn turned it off
after the Defendant was placed in the patrol car. Additionally, she was ten feet away
from the vehicle at that time.
After hearing the evidence presented by the parties, the trial court denied the
motion to suppress and stated the following:
All right. Gentlemen, I think that the Officer had a right to stop and investigate the presence of the automobile that night. It was Eleven-thirty (11:30) in a commercial parking lot. He saw people near the vehicles. I think he had a right to stop and investigate what was going on. Once he did that and the Officer testified that the defendant acted suspiciously, that he had a right to first of all, stopping, second of all, questioning as to his presence there, third of all, to frisking if he had any kind of reasonable suspicion that something may be wrong, which he obviously did. And I think he had a right to frisk him and he found a wad of money. The defendant continued, according to his testimony, acting suspiciously and the smell of marijuana. I heard the testimony that the car was running. I think he had a right to go to the car and find out what was going on inside the car.
For all those reasons I find that the Officer acted appropriately and I will deny the motion to suppress.
15 ....
I think he had the right to make the arrest once he found reasonable suspicion and he found the money in his pocket, he smelled the marijuana.
This court discussed the standard applicable to the review of rulings on motions
to suppress in State v. Robertson, 06-167, p. 7 (La.App. 3 Cir. 7/16/08), 988 So.2d
294, 300, (quoting State v. Bargeman, 98-617, p. 5 (La.App. 3 Cir. 10/28/98), 721
So.2d 964, 967, writ denied, 99-33 (La. 5/28/99), 743 So.2d 658), as follows:
When a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a trial court’s ruling, unless the trial court’s conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion. State v. Burkhalter, 428 So.2d 449 (La.1983), and State v. Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98); 709 So.2d 213. The admissibility of evidence seized without a warrant is a question for the trial court. Its conclusions on credibility and the weight of testimony regarding the voluntariness of a consent for admissibility purposes will not be overturned on appeal, unless the conclusions are unsupported by the evidence. State v. Gachot, 609 So.2d 269 (La.App. 3 Cir.1992), writ denied, 617 So.2d 1180 (La.1993), cert. denied, 510 U.S. 980, 114 S.Ct. 478, 126 L.Ed.2d 429 (1993).
In brief to this court, the Defendant asserts that he was arrested when Dunn
handcuffed him. In support of this argument, the Defendant cites La.Code Crim.P.
art. 201, which defines an arrest as “the taking of one person into custody by another.
To constitute an arrest there must be an actual restraint of the person. The restraint
may be imposed by force or may result from the submission of the person arrested to
the custody of the one arresting him.” The Defendant asserts that a valid arrest must
be supported by probable cause that a crime occurred, and evidence seized as the
result of an invalid arrest is inadmissible as fruit of the poisonous tree.
16 The Defendant argues that should this court find that the arrest was valid because
the search exceeded the scope of a search incidental to a lawful arrest. In support of
this argument, the Defendant cites Arizona v. Gant, __ U.S. __, 129 S.Ct. 1710
(2009). In Gant, the Supreme Court concluded that “circumstances unique to the
automobile context justify a search incident to arrest when it is reasonable to believe
that evidence of the offense of arrest might be found in the vehicle.” Id. at 1714.
Gant had been arrested for driving with a suspended license and placed in the back
of a patrol car. Officers then searched his vehicle and found cocaine in a jacket in the
back seat. Id. In those circumstances, the Court deemed the warrantless search of
Gant’s vehicle inappropriate because the authorities “could not reasonably have
believed” that evidence of the offense for which Gant was arrested might be found
in his car. Id. at 1719. Gant is inapplicable to the facts of the case at bar, as is
evident from the discussion below.
An arrest occurs when the circumstances indicate intent to affect an extended restraint on the liberty of the accused, rather than at the precise time an officer tells an accused he is under arrest. State v. Gibson, 97-1203 (La.App. 5 Cir. 3/25/98), 708 So.2d 1276. A seizure is an arrest, rather than an investigatory stop, when a reasonable person in the defendant’s position would have understood the situation to be a restraint on freedom of movement of the degree that the law associates with a formal arrest. State v. Cojoe, 01-2465 (La.10/25/02), 828 So.2d 1101, citation omitted. However, the use of actual restraint does not, alone, transform a street encounter between the police and a citizen into an arrest because an investigatory stop necessarily “involves an element of force or duress, temporary restraint of a person’s freedom to walk away.” State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284, 1286, per curiam, (citation omitted).
In State v. Cojoe, supra, the Louisiana Supreme Court explained that there is no specific test to determine whether an encounter is an arrest or investigatory stop:
Although a seizure occurs for Fourth Amendment purposes either when an individual has been subjected to
17 physical restraint or when he submits to the assertion of official authority, California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991), no bright-line rule exists for distinguishing between investigatory stops, characterized by brief restraint imposed on a lesser showing of reasonable suspicion, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), from arrests based on probable cause.
Id. at 828 So.2d at 1103.
State v. Smith, 06-557, pp. 6-7 (La.App. 5 Cir. 11/28/06), 947 So.2d 95, 99, writ
denied, 06-2960 (La. 9/14/07), 963 So.2d 993. “An arrest made without probable
cause is illegal and the seizure of evidence pursuant to an illegal arrest is also illegal.”
State v. Graham, 01-1232, p. 10 (La.App. 5 Cir. 5/29/02), 820 So.2d 1101, 1106, writ
denied, 02-1770 (La. 12/19/02), 833 So.2d 329.
We need not determine whether the Defendant was under arrest when he was
handcuffed and placed in the patrol car, but will instead discuss the search of the
The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Similarly, the Louisiana Constitution provides that “[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const. art. 1, § 5. A search conducted without a warrant based upon probable cause is per se unreasonable unless the state is able to show that it falls in one of a carefully defined set of exceptions based on the presence of exigent circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Long, 2003-2592 (La.9/9/04), 884 So.2d 1176, fn. 6, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005).
One exception to the warrant requirement is when there is probable cause to search an automobile. The warrantless search of an automobile is not unreasonable if there is probable cause to justify the search, without proving additional exigency, when the automobile is readily mobile because there is an inherent risk of losing evidence.
18 Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); State v. Long, supra. This exception “rests in part on the premise that if the officers may seize a vehicle and immobilize it for however long it takes to secure a warrant they may conduct an immediate search.” Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Kelley, 2005-1905 (La.7/10/06), 934 So.2d 51, cert. denied, --- U.S. ----, 127 S.Ct. 691, 166 L.Ed.2d 536 (2006).
Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. LSA-C.Cr.P. art. 213(3); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Ceaser, 2002-3021 (La.10/21/03), 859 So.2d 639; State v. Morris, 38,928 (La.App. 2d Cir.9/22/04), 882 So.2d 1221.
State v. Brown, 42,188, 42,189, 42,190, pp. 20-22 (La.App. 2 Cir. 9/26/07), 966
So.2d 727, 746-47, writ denied, 07-2199 (La. 4/18/08), 978 So.2d 347 (alteration in
original).
In State v. Garcia, 519 So.2d 788 (La.App. 1 Cir. 1987), writ denied by State v.
Rodriguez, 530 So.2d 85 (La.1988), police stopped the defendant for a traffic
violation and detected the odor of marijuana coming from the back of the truck. The
court found the odor of marijuana gave the officer probable cause to believe the truck
contained contraband, and the movable nature of the truck supplied the exigent
circumstances to search the truck without a warrant.
In State v. Paggett, 28,843, p. 4 (La.App. 2 Cir. 12/11/96), 684 So.2d 1072, 1074,
the court found the odor of marijuana on the defendant “alone justified a warrantless
search of the vehicle under exigent circumstances.”
In State v. Williams, 38,379, pp. 3-4 (La.App. 2 Cir. 11/25/03), 858 So.2d 878,
880-81, writ denied, 03-3535 (La. 3/12/04), 869 So.2d 807, the court stated:
19 A state trooper’s detection of the odor of marijuana coming from a defendant’s car constitutes justification for a warrantless search. State v. Cohen, 549 So.2d 884 (La.App. 2d Cir.1989), writ denied, 559 So.2d 135 (La.1990). A police officer who makes a valid traffic stop of the defendant’s vehicle has probable cause to search, based upon the faint odor of marijuana which someone was trying to mask by using air fresheners. State v. Reynaga, 93-1520 (La.App. 3d Cir.10/05/94), 643 So.2d 431. (The court also held that the search was valid based on probable cause, even if consent was not given.) Even a routine registration check, which led to a state trooper’s detection of the odor of marijuana, resulted in sufficient probable cause to make a warrantless search and seizure valid. State v. Arnold, 34,194 (La.App.2d Cir.12/06/00), 779 So.2d 840.
Based on the cases cited herein, we find that Dunn’s detection of the odor of burnt
marijuana emanating from the Defendant’s vehicle provided probable cause for the
search of his vehicle. Accordingly, even if the Defendant had been illegally detained
when he was handcuffed and placed in the patrol car, the search of his vehicle was
not conducted pursuant to the illegal detention. Dunn had probable cause to search
the Defendant’s car upon smelling the odor of burnt marijuana, which occurred before
the Defendant was handcuffed and placed in the patrol car. Therefore, this
assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER THREE
In his third assignment of error, the Defendant contends the sentences imposed are
excessive for this offender and these offenses. The Defendant asserts the trial court
indicated he sold drugs for a living and was involved in drug sales at the time of his
arrest. The Defendant asserts no evidence was introduced to support the State’s
allegation that he sold drugs for a living or that he was doing so on the night of his
arrest. Further, the Defendant asserts the trial court failed to adequately consider the
length of the sentences imposed amounts to a life sentence.
20 The Defendant did not object to the sentences at the time they were imposed nor
did he file a motion to reconsider sentence.
This court has reviewed claims of excessiveness where no objection was made and
no motion to reconsider sentence was filed. See State v. Thomas, 08-1358 (La.App.
3 Cir. 5/6/09), __ So.3d __; State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d
342; State v. H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999 So.2d 338. Accordingly,
we will review the Defendant’s claim as a bare claim of excessiveness. However, we
will not consider the other claims asserted by the Defendant.
This court discussed the standard of review applicable to claims of excessiveness
in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247, 250
(alteration in original), as follows:
A sentence which falls within the statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.
State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted).
In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted), this court discussed the factors it would consider in order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals:
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar
21 crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”
The Defendant was convicted of possession of more than 28 but less than 200
grams of cocaine and adjudicated a second felony offender. Pursuant to La.R.S.
40:967 and La.R.S. 15:529.1, the offense carries a sentence of imprisonment at hard
labor from fifteen to sixty years. The Defendant was sentenced to serve fifty years
at hard labor.
Regarding the factors mentioned in Bailey, the parties stipulated that the
Defendant had been previously convicted of drug racketeering. The State also
informed the trial court that the Defendant was on parole at the time he was arrested
for the offenses at issue herein.
The trial court sentenced the Defendant and noted the following:
Mr. Johnlouis, in imposing this sentence I’ve taken into consideration Article 895, the sentencing guidelines. I find that you were engaged as the jury did in illegal conduct, knowingly and intentionally, that you were selling cocaine for a profit and that was I guess your major business enterprise or your major way of making a living. Having heard that you were on parole at the time that you did this it indicates strongly to the Court that any kind of lesser sentence would not be appropriate and certainly any period of probation or suspension of sentence would not succeed, because you had an opportunity to do that and you missed that opportunity. You didn’t take advantage of that opportunity. The Court finds that any lesser sentence would deprecate the seriousness of the offense and that any lesser sentence would not change the way that you have lived your life in the recent past.
In State v. Allen, 93-838 (La.App. 5 Cir. 5/31/94), 638 So.2d 394, writ granted,
94-1754 (La. 11/29/94), 646 So.2d 390, writ recalled, 94-1754 (La. 3/16/95), 651
So.2d 1343, the court found a sentence of twenty years was not excessive for a second
22 felony offender convicted for possession of at least 28 but not more than 200 grams
of cocaine.3
Although, to some, the sentence received by the Defendant in the case at bar
appears to be excessive in light of the case cited herein, the court notes the Defendant
was on parole at the time he committed the offense at issue. Thus, this court finds the
Defendant’s sentence for possession of at least 28 but not more than 200 grams of
cocaine is not excessive.
CONCLUSION
The Defendant’s conviction for possession at least 28 but less than 200 grams of
cocaine and adjudication as an habitual offender is affirmed. His sentence for that
offense is amended to delete the fine provision, and the trial court is instructed to
make an entry in the minutes of court to reflect the amendment. The Defendant’s
conviction and sentence for transactions involving proceeds derived from drugs
transactions is vacated and set aside.
CONVICTION FOR POSSESSION OF COCAINE AFFIRMED; SENTENCE FOR POSSESSION OF COCAINE AMENDED; CONVICTION FOR TRANSACTIONS INVOLVING PROCEEDS FROM DRUG TRANSACTIONS SET ASIDE AND VACATED; REMANDED WITH INSTRUCTIONS.
3 The supreme court granted certiorari to review the issue of the trial court’s requiring the parties to alternate in their exercise of peremptory challenges. However, the defendant did not object to the procedure; therefore, the court recalled the writ of certiorari as improvidently granted.