STATE OF LOUISIANA NO. 22-KA-499
VERSUS FIFTH CIRCUIT
CARLOS MCKNIGHT, JR. COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 21,213, DIVISION "C" HONORABLE CONNIE M. AUCOIN, JUDGE PRESIDING
May 24, 2023
JUDE G. GRAVOIS JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and John J. Molaison, Jr.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING, WITH RESERVATION UNTO DEFENDANT TO WITHDRAW GUILTY PLEA JGG FHW JJM COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Joel T. Chaisson, II Louis G. Authement
COUNSEL FOR DEFENDANT/APPELLANT, CARLOS MCKNIGHT, JR. Katherine M. Franks GRAVOIS, J.
After entering a guilty plea pursuant to State v. Crosby,1 defendant, Carlos
McKnight, Jr., has appealed the denial of his “Motion to Suppress Evidence.” For
the following reasons, we affirm defendant’s conviction, vacate defendant’s
sentence, and remand the matter to the trial court for resentencing, reserving unto
defendant the right to withdraw his guilty plea.
PROCEDURAL HISTORY
On May 10, 2021, the St. Charles Parish District Attorney filed a bill of
information charging defendant, Carlos McKnight, Jr., with possession with the
intent to distribute marijuana, in violation of La. R.S. 40:966(A)(2). On May 18,
2021, defendant pled not guilty.
On July 13, 2021, defendant filed a “Motion to Suppress Evidence.” On
May 3, 2022, the motion was denied following a hearing. On June 21, 2022,
defendant withdrew his plea of not guilty, and after being advised of his Boykin2
rights, pled guilty as charged pursuant to State v. Crosby, supra, reserving his right
to challenge the denial of his “Motion to Suppress Evidence.” That same day,
defendant was sentenced to “five years with the Department of Corrections,
deferred, under Article 893; three years active probation” with the following
special conditions: contact his probation officer within forty-eight hours of
sentencing, comply with the general conditions of probation set forth in La. C.Cr.P.
art. 895, undergo a substance abuse evaluation, and follow any and all
recommendations for treatment. The judge imposed a five hundred dollar fine to
be paid by June 21, 2023, and “court costs through the St. Charles Sheriff’s
Office.” The judge further ordered defendant to pay a three hundred fifty dollar
reimbursement to the Public Defender Office to be paid by June 21, 2023, and a
1 State v. Crosby, 338 So.2d 584 (La. 1976). 2 Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
22-KA-499 1 monthly supervision fee of fifty dollars. Defendant was also sentenced to three
days in the parish prison with credit for time served. On July 15, 2022, defendant
filed a “Motion For Appeal Pursuant to State v. Crosby,” which was granted on
July 21, 2022. Defendant now challenges the denial of his “Motion to Suppress
Evidence.”
On appeal, defendant argues that the trial judge erred in denying the defense
Motion to Suppress, both the search of defendant’s automobile and the statements
he gave to the officers following his alleged illegal arrest. He avers that his arrest
was illegal as it lacked probable cause and that he should have been issued a
summons instead. He asserts that the statement and search of the vehicle were
products of an illegal arrest and therefore fruits of the poisonous tree. As such, he
contends that the Motion to Suppress should have been granted.
The State avers that defendant’s detention was justified and that the smell of
marijuana provided probable cause for the warrantless search of the vehicle. The
State opines that this probable cause increased when defendant gave the officer a
container of marijuana. The State contends that the officer should not have been
limited to issuing a summons when the officer smelled a “felony level of
marijuana.” It asserts that the scope of the vehicle search was justified. The State
provides that defendant, his girlfriend, and the occupant of the other vehicle were
all advised of their rights. The State concludes that the court did not err in denying
the defense Motion to Suppress.
ASSIGNMENT OF ERROR
DENIAL OF MOTION TO SUPPRESS
On July 13, 2021, defendant filed a “Motion to Suppress Evidence.” In the
motion, he asked the judge to suppress the evidence, whether the evidence is
“physical or any form of statement or confession, particularly the alleged
marijuana, and any other items seized from the defendant in this matter … as the
22-KA-499 2 result of an unlawful search, without a warrant, without any valid exception to the
requirement of warrant and without probable cause.” On May 3, 2022, a hearing
was held on the motion. At the hearing, defense counsel clarified that she sought
to suppress a scale, a backpack, and any statements made by defendant based on an
illegal and unconstitutional stop.
Facts
Deputy Adam Coley with the St. Charles Parish Sheriff’s Office testified
that on April 20, 2021 at around 10:30 p.m. while on patrol, he went to the
construction site of a park in the St. Rose area in St. Charles Parish. That time of
night was past the closing time of parks in the area. Deputy Coley acknowledged
that he was not dispatched there and that the park was a public place. He explained
that the location was secluded and that there was only one way in and out. The
area had a parking lot and basketball courts that were already built.
Deputy Coley observed two parked cars there. One person, later identified
as Oliver Aguillard, was outside of one of the vehicles, and defendant and his
girlfriend, Nila Cambre, were inside the other vehicle. Deputy Coley stated it was
clear that the people he saw at the park were not engaged in construction. As such,
he found that there was suspicious behavior to warrant further investigation. He
acknowledged that he did not observe an exchange of anything between the
individuals. He then activated the lights on his police car to alert the people there
that he was law enforcement and to not alarm them. He approached the people and
asked what they were doing in that area at that time of night. They replied that
they were just talking. As he approached the vehicle defendant was in, Deputy
Coley “smelled green marijuana” coming through the open passenger window. He
clarified that he meant raw, unsmoked marijuana.
When Deputy Coley was talking to the individuals, defendant was seated in
the front passenger area of the vehicle with a backpack between his feet. Deputy
22-KA-499 3 Coley obtained identification from the three individuals and asked who had
marijuana. Defendant replied that he had a small amount and handed Deputy
Coley a cigar packet containing “two flowers,” a total of approximately two grams,
of marijuana. Deputy Coley removed one of the “flowers” and asked how much it
was worth. Defendant told him that it was worth approximately $10. Deputy
Coley put the “flower” aside and another deputy arrived.3 The three people on the
scene were separated and detained. Deputy Coley explained that they were
detained because of the location of the incident and the strong odor of marijuana.
Defendant was removed from the vehicle, handcuffed, and placed inside the police
unit. Deputy Coley acknowledged that at that time, defendant was only detained
and was not under arrest.
Deputy Coley then searched Ms. Cambre’s vehicle without a warrant or
consent.4 He testified that there was no contraband or weapon in plain view.
However, on the front passenger floorboard, he found a backpack5 with a jar
containing approximately twenty grams of marijuana, a bag with an additional
small quantity of marijuana, several Dixie cups with traces of marijuana inside,
and some torn bags that he indicated were a common way to package small
quantities of marijuana for sale. Approximately 25.3 grams of marijuana were
recovered from the backpack. Inside the unlocked center console, there was a
digital scale with traces of marijuana on the scale plate. Deputy Coley observed
that the scale was turned “on,” and that because these devices typically have an
automatic “off” feature, it appeared that the scale had recently been used. The total
3 Officer Alexis Agnelly served as a backup unit at the park under construction on April 20, 2021. When she arrived, three individuals were already detained. Sergeant Andrew Peyton also responded as a backup unit. He recalled that Deputy Coley put out a call that he was at the park with two vehicles with multiple occupants. Neither Officer Agnelly, nor Sergeant Peyton testified to seeing Deputy Coley search the vehicle. 4 Deputy Coley acknowledged that defendant was not the driver and that the vehicle was not registered to defendant. 5 The deputy did not have consent or a warrant to search the backpack.
22-KA-499 4 aggregate amount of marijuana recovered from the scene was approximately 27.3
grams.
Deputy Coley advised defendant of his Miranda6 rights. After waiving
those rights, defendant told the deputy that he was “slinging”7 marijuana and
claimed ownership of the items found in the vehicle. Deputy Coley also spoke to
Ms. Cambre and advised her of her rights. Ms. Cambre admitted that defendant
possessed marijuana and she knew that he sold it. Ms. Cambre explained that she
picked defendant up from his house and drove him to the construction site/park.
Mr. Aguillard also admitted that he knew defendant sold and smoked marijuana.
After Deputy Coley testified, the trial judge denied the Motion to Suppress,
finding that there was probable cause to search the vehicle, that the statements
were legally obtained, and that the advice of rights was given to defendant with
respect to the second statement. Defense counsel noticed her intent to seek a writ.
Although it does not appear that defendant sought a writ on the matter with this
Court, he filed the instant appeal wherein he challenges the suppression ruling and
focuses on his arrest.
Analysis
The Fourth Amendment to the United States Constitution and Article I, § 5
of the Louisiana Constitution prohibit unreasonable searches and seizures. State v.
Gray, 06-298 (La. App. 5 Cir. 10/31/06), 945 So.2d 798, 801, writ denied, 06-2958
(La. 9/14/07), 963 So.2d 993. However, law enforcement officers are authorized
by La. C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to conduct
investigatory stops, which allow officers to stop and interrogate a person who is
6 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The advice of rights form was executed at 2:30 a.m. 7 Deputy Coley explained that “slinging” is a slang term for selling illicit drugs.
22-KA-499 5 reasonably suspected of criminal activity. Id., citing Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968).
“Reasonable suspicion” to stop is something less than probable cause and is
determined under the facts and circumstances of each case by whether the officer
had sufficient facts within his knowledge to justify an infringement on the
individual’s right to be free from governmental interference. State v. Taylor, 12-25
(La. App. 5 Cir. 6/28/12), 97 So.3d 522, 529. Police do not have to observe what
they know to be criminal behavior before investigating. Instead, the requirement is
that the officers have a reasonable suspicion of criminal activity. State v. Morales,
12-454 (La. App. 5 Cir. 12/18/12), 125 So.3d 1141, 1146. Evidence derived from
an unreasonable stop will be excluded from trial. Taylor, supra.
The determination of reasonable grounds for an investigatory stop does not
rest on the officer’s subjective beliefs or attitudes, but is dependent on an objective
evaluation of all the circumstances known to the officer at the time of his
challenged action. State v. Sierra, 11-161 (La. App. 5 Cir. 12/28/11), 83 So.3d
239, 246. In considering whether the officer acted reasonably in such
circumstances, due weight must be given, not to his inchoate and unparticularized
suspicion or hunch, but to the specific reasonable inferences that he is entitled to
draw from the facts in light of his experience. State v. Gross, 14-110 (La. App. 5
Cir. 6/24/14), 145 So.3d 521, 527-28, writ denied, 14-1516 (La. 2/27/15), 159
So.3d 1065.
A reviewing court must take into account the totality of the circumstances,
giving deference to the inferences and deductions of a trained police officer that
might elude an untrained person. An officer’s experience, his knowledge of recent
criminal patterns, and his knowledge of an area’s frequent incidence of crimes are
factors that may support reasonable suspicion for an investigatory stop. State v.
Gibson, 12-350 (La. App. 5 Cir. 10/30/12), 103 So.3d 641, 649.
22-KA-499 6 An arrest occurs when the circumstances indicate an intent to effect 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. Graham, 01-1232 (La. App. 5
Cir. 5/29/02), 820 So.2d 1101, 1106, writ denied, 02-1770 (La. 12/19/02), 833
So.2d 329. Probable cause to arrest exists when facts and circumstances within an
officer’s knowledge, and of which he has reasonable, trustworthy information, are
sufficient to justify a man of average caution in believing that the person to be
arrested has committed a crime. State v. Trepagnier, 07-749 (La. App. 5 Cir.
3/11/08), 982 So.2d 185, 192, writ denied, 08-784 (La. 10/24/08), 992 So.2d 1033.
The plain view doctrine renders a warrantless search reasonable: (1) if the
police officer is lawfully in the place from which he views the object; (2) where the
object’s incriminating character is immediately apparent; and (3) the officer has a
lawful right of access to the object. State v. Miguel, 18-711 (La. 1/30/19), 263
So.3d 873, 874. The plain smell exception is an extension of the plain view
exception. State v. Gray, 13-1326 (La. 6/28/13), 122 So.3d 531, 533.
The Fourth Amendment permits an automobile search if probable cause
exists to believe it contains contraband or evidence of a crime. State v. Jackson,
20-124 (La. 1/31/20), 289 So.3d 45, 46. The scope of the warrantless search of an
automobile is not defined by the nature of the container in which the contraband is
secreted, but rather, is defined by the object of the search and the place in which
there is probable cause to believe it may be found. State v. Tatum, 466 So.2d 29,
31 (La. 1985), citing U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572
(1982).
Courts, including this Court, have consistently held that the odor of
marijuana provided the officers with sufficient probable cause to conduct
warrantless searches of vehicles. State v. Brown, 17-420 (La. App. 5 Cir. 2/21/18),
239 So.3d 455, 462, writ denied, 18-480 (La. 1/18/19), 262 So.3d 281. Probable
22-KA-499 7 cause exists when the totality of circumstances gives rise to a “fair probability” that
contraband or evidence of a crime will be found in a particular place. Jackson, 289
So.3d at 46.
In a hearing on a motion to suppress, the State bears the burden of proving
the admissibility of a purported confession or statement by the defendant and of
any evidence seized without a warrant. La. C.Cr.P. art. 703(D); State v. Dufrene,
12-716 (La. App. 5 Cir. 4/10/13), 115 So.3d 22, 24. A trial court is afforded great
discretion when ruling on a motion to suppress and its ruling will not be disturbed
absent an abuse of that discretion. State v. Smith, 19-395 (La. App. 5 Cir. 3/13/20),
293 So.3d 732, 741.
In State v. Lacrosse, 19-599 (La. App. 5 Cir. 1/7/20), 2020 WL 88838, this
Court reversed the trial judge’s granting of a motion to suppress evidence. The
evidence at the suppression hearing reflected that the officer conducted a valid
traffic stop. After coming to a stop in a driveway, the defendant exited his vehicle
and closed the door, at which point the officer detected the odor of marijuana. This
smell of fresh marijuana provided the officer with sufficient probable cause to
conduct a warrantless search of the vehicle. As the officer conducted the lawful
search, the smell of the marijuana grew stronger as he neared the trunk. Id. at *4.
On appeal, defendant’s argument focuses more on whether his arrest was
illegal. He argues that it was illegal, and therefore, the subsequent statement and
evidence should have been suppressed. We disagree.
Upon review, we find that Deputy Coley did not need reasonable suspicion
to approach the three individuals in a closed public park under construction and ask
a few questions. Although reasonable suspicion is required for a police officer to
stop an individual, it is not required every time an officer approaches a citizen in a
public place. Police officers possess the same right as any citizen to approach an
individual and ask a few questions. State v. Turner, 08-1188 (La. App. 5 Cir.
22-KA-499 8 5/12/09), 13 So.3d 695, 699, writ denied sub nom., State ex rel. Turner v. State, 09-
2100 (La. 8/18/10), 42 So.3d 400. A police officer’s action of merely approaching
an individual does not implicate the protections of the Fourth Amendment.
Morales, 125 So.3d at 1147. Police officers remain free to approach any citizen to
ask him a few questions “as long as [they] do not convey a message that
compliance with their requests is required.” Gray, supra.
Nevertheless, in the present case, we find that there was reasonable
suspicion to stop defendant. Deputy Coley approached the small group of people
in a park under construction at night and smelled marijuana. He explained that the
area was secluded and that there was only one way to enter or exit. After the initial
approach, there were additional circumstances to justify defendant’s detention.
After Deputy Coley smelled the marijuana and asked who had it, defendant
produced approximately two grams of marijuana. Defendant argues in part that the
initial two grams of marijuana justified defendant only being issued a summons,
rather than being arrested. However, this argument is without merit in light of
State v. Jackson, 18-1135 (La. 11/20/18), 257 So.3d 179.
In Jackson, 257 So.3d at 180, officers approached a group of people that
included the defendant on a sidewalk at night in a high-crime area because the
group strongly smelled of burning marijuana. The Louisiana Supreme Court
indicated that this gave the officers reasonable suspicion to conduct a brief
investigatory stop. The court stated that under the totality of the circumstances, the
officers also had a reasonable, objective, and particularized basis for conducting a
pat-down frisk of the defendant. Before the pat-down was completed, the
defendant stated that he had a bag of marijuana and produced it for the officers.
The defendant was then arrested, and a search incident to arrest revealed
individually packaged heroin and a digital scale. Id.
22-KA-499 9 In Jackson, the district court granted the defendant’s motion to suppress the
evidence because the possession of marijuana, while criminal, may result in the
issuance of a summons, rather than an arrest. The Supreme Court found that the
district court erred. The court stated that an officer may arrest a person who
commits a misdemeanor in the officer’s presence. The court found that the
defendant, during a Terry stop based on reasonable suspicion, was found to be in
possession of marijuana. Therefore, he was subject to arrest. The court therefore
reversed the district court’s ruling that granted the defendant’s motion to suppress.
Id.
As indicated in Jackson, even though the marijuana in the present case was a
small amount, defendant was still subject to arrest at that point. Accordingly,
defendant’s arrest was lawful and the evidence and statement obtained after that
arrest do not require suppression based on the arrest.
In light of the above, based on the totality of the circumstances presented,
we find that the trial court did not abuse its discretion in denying defendant’s
Motion to Suppress. Accordingly, defendant’s arguments on appeal are without
merit.
ERRORS PATENT REVIEW
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920,
State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175
(La. App. 5th Cir. 1990).
An error patent concerning defendant’s sentencing was discovered. At
sentencing, the judge indicated that defendant’s sentence was deferred under
Article 893.8 However, a deferred sentence is not available to a defendant for a
After accepting defendant’s guilty plea for possession with intent to distribute 8
marijuana, defendant was sentenced to “five years with the Department of Corrections, deferred, under Article 893; three years active probation.”
22-KA-499 10 violation of La. R.S. 40:966(A)(2). La. C.Cr.P. art. 893 provides guidelines for
both suspension and deferment of sentences. La. C.Cr.P. art. 893(E)(1)(b)
specifically prohibits deferment of a sentence for a conviction under La. R.S.
40:966(A), which is the offense defendant pled guilty to in the instant case.9 See
State v. Flynn, 17-1327 (La. App. 1 Cir. 4/11/18), 249 So.3d 834, 837.
Considering the foregoing, defendant’s deferred sentence, which is
specifically prohibited by La. C.Cr.P. art. 893(E)(1)(b), is hereby vacated. We
remand this matter for resentencing in accordance with the law. Further, since it
appears from the record on appeal that defendant entered his guilty plea under
Article 893 because he wanted his sentence deferred, we reserve unto defendant
the right to withdraw his guilty plea.
DECREE
For the foregoing reasons, defendant’s conviction is affirmed, defendant’s
sentence is vacated, and the matter is remand to the trial court for resentencing,
reserving unto defendant the right to withdraw his guilty plea.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING, WITH RESERVATION UNTO DEFENDANT TO WITHDRAW GUILTY PLEA
9 La. C.Cr.P. art. 893(E)(1)(b) provides, in pertinent part: “The court shall not defer a sentence under this provision … for a violation of R.S. 40:966(A) … .”
22-KA-499 11 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MAY 24, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-KA-499 E-NOTIFIED 29TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE CONNIE M. AUCOIN (DISTRICT JUDGE) LOUIS G. AUTHEMENT (APPELLEE) KATHERINE M. FRANKS (APPELLANT)
MAILED HON. HONORABLE JOEL T. CHAISSON, II (APPELLEE) DISTRICT ATTORNEY TWENTY-NINTH JUDICIAL DISTRICT COURT POST OFFICE BOX 680 HAHNVILLE, LA 70057