State v. Banks

95 So. 3d 1081, 2011 La.App. 4 Cir. 0903, 2012 WL 974881, 2012 La. App. LEXIS 371
Louisiana Court of Appeal·Decided March 21, 2012·No. No. 2011-KA-0903·Published·Cited by 2 cases

Opinions

MAX N. TOBIAS, JR., Judge.

| Freddie Banks (“Banks”), the defendant/appellant, appeals his guilty plea and resulting sentence to one count of possession with the intent to distribute cocaine, contending that the trial court erred by denying his motion to suppress the evidence. For the reasons that follow, we affirm.

On 17 December 2010, the state charged Banks with one count of possession with the intent to distribute cocaine, a charge to which he subsequently entered a plea of not guilty. The court heard and denied his motions to suppress the evidence and statement on 24 February 2011. Banks objected and sought supervisory review in this court, but this court denied his application, finding that Banks would have an adequate remedy on appeal if he was ultimately convicted. State v. Banks, 11-0353, unpub. (La.App. 4 Cir. 4/1/11), writ denied, 11-0700 (La.4/8/11), 62 So.3d 64.

On remand to the trial court, Banks withdrew his prior plea of not guilty on 20 May 2011 and entered a plea of guilty as charged, reserving his right to appeal the denial of his motion to suppress the evidence pursuant to State v. Crosby, 338 So.2d 584 (La.1976). On 24 May 2011, the court sentenced Banks to serve two years at hard labor, with the recommendation that he be allowed to participate in |2any vocational, educational, or drug rehabilitation program offered during incarceration. This appeal followed.

Because Banks entered a plea of guilty, the facts of the case are determined from the suppression hearing. Officer Athena Monteleone testified that she arrested Banks on 15 December 2010, on Bienville Street near North Claiborne Avenue in New Orleans. Officer Monteleone testified that she was driving a police unit, following another officer in a separate unit, [1083] when she made a U-turn on Bienville Street. As she turned, she saw a truck ■with very heavy front-end damage stopped at a stop sign on the corner. She noticed that the truck did not have a brake tag (inspection sticker), and the driver of the truck, Banks, was not wearing a seat belt. She shone her spotlight on the truck, and the other officer stopped her police unit behind Banks’ truck.

Officer Monteleone exited her police unit and walked toward Banks’ truck. She testified that at first Banks had his hands on the steering wheel, but as she approached him, he dropped his hands to his lap, and his shoulders began moving up and down as if he was doing something inside the truck. Officer Monteleone testified that she ordered him several times to show his hands, but he would not comply. She stated that as she got up to the truck, she looked inside and noticed that the buttons of the fly on Banks’ jeans were undone and the fly was open. She asked him to produce his driver’s license, registration for the truck, and proof of insurance. Banks admitted that he had no identification with him, and he indicated that he could not remember his social security number. She ordered him to get out of the truck, placed him on her police vehicle, and started to frisk him. She stated that his fly was still open, and she could feel an unusual bulge in the crotch area of his pants. She testified that she put Banks in handcuffs to await the arrival of a Rmale officer to complete the frisk; she was concerned that the bulge may have been drags.

Officer Monteleone testified that Officer Brian Bissell soon arrived and frisked Banks, and who also felt the bulge. She stated that Officer Bissell then seized thirty-seven individually-wrapped pieces of crack cocaine from Banks’ pants. Officer Monteleone arrested Banks and advised him of his Miranda rights. After she put Banks in the back of her police unit, she asked him why he was selling crack cocaine. She testified that he replied that he did so because his daughter’s birthday was approaching. Officer Monteleone testified that the result of a field test on the substances seized from Banks was positive for cocaine. She testified that $105 was also seized from Banks in denominations of $1, $5, and $10 bills. She also issued Banks a citation for the traffic offenses.

On cross-examination, Officer Montel-eone testified that Banks’ truck was stopped at a stop sign facing the street that she was traveling down, and as she turned, the headlights on her unit illuminated the track. She testified that the stop occurred at approximately 1:15 a.m., and she admitted that part of the reason why she noticed the truck was the time of night. She denied drawing a gun when she walked up to Banks’ truck. She admitted that Banks did not try to flee, and she stated that he was the only person in the truck. Officer Monteleone testified that she felt the bulge in Banks’ jeans during the frisk and that Officer Bissell arrived within a few minutes to complete the frisk. She also stated that she originally was unsure if the bulge in Banks’ jeans was a weapon.

On redirect, Officer Monteleone formally identified Banks as the man she arrested that morning, and she testified that Banks’ truck was stopped at the stop sign in a traffic lane when she saw him.

|4The state introduced the results of the field test and the traffic citation that Officer Monteleone issued to Banks.

Errors Patent

A review of the record for patent errors reveals that the trial court failed to order that the appellant’s two-year sentence be served at hard labor without benefit of parole, as mandated by La. R.S. 40:967 B(4)(b), which provides that the [1084] sentence for conviction for possession with the intent to distribute cocaine is two to thirty years at hard labor, the first two years of which must be served without benefit of parole, probation, or suspension of sentence. Thus, the sentence imposed by the court is illegally lenient. However, as per La. R.S. 15:301.1 A and State v. Williams, 00-1725, pp. 10-12 (La.11/28/01), 800 So.2d 790, 798-99, the sentence is deemed to have been imposed with these restrictions of benefits, even when the trial court fails to delineate them. Thus, no need exists for this court to correct the sentence. See State v. Phillips, 03-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675.

Assignment of Error

In his sole assignment of error, Banks contends that the trial court erred by denying his motion to suppress the evidence. Specifically, he argues that the drugs were seized from him pursuant to an investigatory stop, and there was no indication that the officer knew that the bulge that she felt in his pants was contraband. Indeed, the officer testified on cross-examination that she was not sure if what she felt was contraband or a weapon. Banks asserts that the officer could not then seize the bulge containing the cocaine because it was not immediately apparent to her that the bulge was contraband, and thus its seizure cannot be justified under the “plain feel” exception to the warrant requirement.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Banks, 95 So. 3d 1081, 2011 La.App. 4 Cir. 0903, 2012 WL 974881, 2012 La. App. LEXIS 371 (La. Ct. App. 2012).

95 So. 3d 1081 (State v. Banks) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Boyles
157 So. 3d 1170 (Louisiana Court of Appeal, 2015)
State v. Candebat
133 So. 3d 304 (Louisiana Court of Appeal, 2014)