State v. Baker

772 So. 2d 225, 2000 WL 1584857
CourtLouisiana Court of Appeal
DecidedOctober 18, 2000
Docket99-KA-2846
StatusPublished
Cited by4 cases

This text of 772 So. 2d 225 (State v. Baker) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Baker, 772 So. 2d 225, 2000 WL 1584857 (La. Ct. App. 2000).

Opinion

772 So.2d 225 (2000)

STATE of Louisiana
v.
Michael BAKER, a/k/a Freddie McGraw.

No. 99-KA-2846.

Court of Appeal of Louisiana, Fourth Circuit.

October 18, 2000.

*226 Harry F. Connick, District Attorney, Nicole Brasseaux Barron, Assistant District Attorney, Derrick Edwards, Law Clerk, New Orleans, LA, Counsel for Plaintiff/Appellee.

J. Rodney Baum, Louisiana Appellate Project, Baton Rouge, LA, Counsel for Defendant/Appellant.

Court composed of Judge CHARLES R. JONES, Judge MIRIAM G. WALTZER, Judge PATRICIA RIVET MURRAY.

MURRAY, Judge.

Defendant Michael Baker appeals his conviction for attempted possession of cocaine claiming that the trial court erred in not granting a motion to suppress, and in imposing an unconstitutionally excessive sentence. He further submits that the trial court's failure to inform him of the time limitation for filing a petition for postconviction relief was error patent. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF THE CASE

Michael Baker was charged with one count of possession of cocaine, a violation of La.Rev.Stat. 40:967. A six-person jury returned a responsive verdict of guilty of attempted possession of cocaine. After reviewing a presentence investigation report, the trial court sentenced Mr. Baker to thirty months at hard labor. A motion to reconsider sentence was denied, and a motion for an appeal was granted. The State then filed a multiple bill charging Mr. Baker as a third offender, to which he pled not guilty. At the multiple bill hearing, the trial court heard testimony from a fingerprint expert, found Mr. Baker to be a third offender, ordered the original sentence vacated, and sentenced him to life imprisonment athard labor. The trial court again denied a motion to reconsider sentence and ordered that the multiple bill proceedings be incorporated into the appeal.

STATEMENT OF THE FACTS

At trial, Officer Paul Noel testified that, on March 10, 1999 at approximately 2:20 p.m., he and his partner Officer Ron Stevens, along with Officers Joseph Meisch and Ken Bowen in a separate unit, saw Anthony Gaston standing on the sidewalk in front of 3505 Magnolia Street. Mr. *227 Gaston was drinking from a bottle of Wild Irish Rose, in violation of the open container law. All of the officers stopped and exited their police cars, and Officers Meisch and Bowen approached Mr. Gaston to give him a summons for the municipal violation. Officers Noel and Stevens were to ensure officers' safety. Accordingly, they watched two men who were sitting on the porch of 3505 Magnolia Street, a double shotgun residence. One of the men on the porch was Michael Baker. According to Officer Noel, Mr. Baker seemed "extremely nervous" and "real fidgety." Officer Noel observed Mr. Baker reach into his pocket, then put his hand to the side of his leg, and drop an object to the ground by his feet. Officer Noel testified that although he could not see what the object was, he believed, based upon Mr. Baker's nervous actions and the officer's prior experience with making narcotics arrests in the area, that the object was contraband. Officer Noel retrieved the object and found that it was a glass tube containing wire mesh and a visible white residue; he recognized the object to be a crack pipe. Officer Noel further testified that there was no fence in front of 3505 Magnolia although there was a fence in the back of the property.

Officer Ron Stevens, Officer Noel's partner, also testified at trial. Officer Stevens stated that there were five officers, himself and Officer Noel in one unit, and three officers, Meisch, Bowen, and Imbornone, in another unit, involved in the subject incident. Officer Stevens further testified that he and Officer Noel were approaching the men on the porch when Officer Noel gave a "966" which was the signal for a drug law violation. Officer Stevens immediately detained the second man on the porch. According to the testimony of Officer Stevens, he and his partner were approximately ten to fifteen feet away and were walking "up to" the area and would have stopped "at a distance just to maintain officer's safety" when Officer Noel saw Mr. Baker discard the contraband. Notably, according to Officer Stevens, Anthony Gaston was on the lawn of the residence.

The only other witness at trial was John Palm, a criminalist with the New Orleans Police Department who was stipulated to be an expert in the identification and analysis of controlled dangerous substances. He testified that he had washed the residue from the glass pipe that had been marked with the item number pertaining to the arrest. The residue tested positive for cocaine.

ERRORS PATENT:

A review of the record reveals an error in the sentence imposed. Mr. Baker was sentenced as a third offender; his predicate convictions were for simple robbery and armed robbery. Pursuant to La.Rev.Stat. 15:529.1(A)(1)(b)(ii), because at least one of the prior felonies is defined as a crime of violence, the minimum sentence which could be imposed was life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Although the trial court imposed a life sentence, it failed to order that the sentence must be served without the benefits of parole, probation, or suspension of sentence as required by statute, although the court did not actually suspend the sentence. Thus, the sentence is illegally lenient. However, because this is an error favorable to Mr. Baker and the State has not complained, the illegally lenient sentence cannot be corrected on appeal. State v. Fraser, 484 So.2d 122 (La.1986); State v. Samuels, 94-1408 (La.App. 4 Cir. 6/7/95), 657 So.2d 562.

DISCUSSION:

ASSIGNMENT OF ERROR NUMBER 1:

In his first assignment of error, Mr. Baker contends that the trial court erred when it denied the motion to suppress evidence.[1] He argues that the police *228 made a warrantless entry onto private property without probable cause. Mr. Baker relies on the fact that Officer Noel testified he was unable to determine from his vantage point on the sidewalk that the object dropped by Mr. Baker was contraband; thus, he argues, the State cannot allege that the plain view doctrine legitimizes the officer's entry into the yard of 3505 Magnolia Street and seizure of the object discarded while on private property. The State in its brief argues that Officer Noel witnessed Mr. Baker engage in suspicious activity and exhibit nervous behavior, in an area with a history of narcotics activity, and thus had reasonable suspicion to conduct an investigatory stop even though Mr. Baker was sitting on a porch at the time. The State further argues that once Officer Noel was adjacent to Mr. Baker, he could see the glass pipe which was obviously contraband.

In State v. Deary, 99-0627 (La.1/28/00), 753 So.2d 200, a case involving a police officer's entry into a yard of a home from which vantage point he saw contraband, the Supreme Court reversed the ruling of this Court[2] affirming the trial court's decision to grant the motion to suppress evidence. The Louisiana Supreme Court stated:

The front porch of a private residence falls within the curtilage of the home for Fourth Amendment purposes because it encompasses "the area around the home to which the activity of home life extends." Oliver v.

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Bluebook (online)
772 So. 2d 225, 2000 WL 1584857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-baker-lactapp-2000.