State v. Bullock

661 So. 2d 1074, 95 La.App. 4 Cir. 0324, 1995 La. App. LEXIS 2430, 1995 WL 546913
CourtLouisiana Court of Appeal
DecidedSeptember 15, 1995
DocketNo. 95-KA-0324
StatusPublished

This text of 661 So. 2d 1074 (State v. Bullock) 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. Bullock, 661 So. 2d 1074, 95 La.App. 4 Cir. 0324, 1995 La. App. LEXIS 2430, 1995 WL 546913 (La. Ct. App. 1995).

Opinions

JiCIACCIO, Judge.

The appellant, Dawn Bullock, was charged with simple possession of cocaine and pled not guilty. Her motion to suppress the evidence was heard and denied by the trial court. Appellant withdrew her prior plea of not guilty and pled guilty as charged, reserving her right pursuant to State v. Crosby, 338 So.2d 584 (La.1976), to appeal the trial court’s ruling on the motion to suppress the evidence. She was sentenced to serve three years at hard labor. However, she later pled guilty to a multiple bill; her sentence was vacated; and she was sentenced as a second offender to serve three years at hard labor. In this appeal, she argues that the trial court [1075]*1075erred when it denied her motion to suppress the evidence.

The appellant was arrested during the execution of a warrant for a house in which she was found. According to the affidavit forming the basis for the warrant, police officers received a tip on May 11, 1994, from a reliable confidential informant concerning sales of cocaine from 3101 Palmyra Street by Willie Cole. The C.I. indicated that Cole had an established clientele who would purchase cocaine from Cole at that address, and the C.I. offered to make a controlled purchase from Cole.

The officers checked the N.C.I.C. computer, which indicated that Cole was on probation for possession of cocaine. Cole also had prior arrests for possession with the intent to distribute cocaine, possession of cocaine and marijuana, armed robbery, and issuing worthless cheeks.

|2The informant met with the officers, was searched, and then was given money to make a controlled purchase from Cole. The officers drove the C.I. to the area of 3101 Palmyra and watched while the C.I. entered the residence and then subsequently reemerged. The C.I. met with the officers and turned over a rock-like substance which tested positive for cocaine. The C.I. told the officers that Cole sold him the rock of cocaine.

Based upon this information, the officers obtained a search warrant for 3101 Palmyra, which they executed on May 12th. They knocked on the door, and when no one answered, they forced their way in through a door which had been barricaded with a large piece of furniture. Inside the house, they found Myrtis Taylor in the bathroom trying to flush down the toilet a plastic bag containing what was later found to be cocaine. The officers found Cole and the defendant Dawn Bullock lying on a bed in a bedroom. The officers also found a gun in the bedroom. Because the officers knew that Cole had a prior felony conviction, they placed him under arrest for being a convicted felon in possession of a firearm. When the officers learned the defendant also had a prior felony conviction, they also placed her under arrest for the same charge.

Both officers at the suppression hearing testified that the C.I. had told the police that the females living in the house sometimes hid cocaine in their vaginas, although one officer admitted that this information was not included in the search warrant affidavit. A female DEA agent took the defendant into a bathroom, where she had the defendant undress and spread her legs. The agent testified that she could see the end of a plastic bag sticking out from the defendant’s vagina. The agent pulled out the bag, which contained cocaine. She also conducted a body cavity search and ^discovered yet another bag of cocaine in the defendant’s vagina. The agent denied conducting a body cavity search of any of the three other females who were found in the house at the time the search warrant was executed. However, another female who was present in the house testified that all four females were subjected to this type of search.

A review of the record for errors patent reveals there are none.

By her sole assignment of error, the appellant contends that the trial court erred by denying her motion to suppress the evidence. Specifically, she argues that while the officers had a warrant to search the house, the warrant did not allow them to conduct a body cavity search on her. She notes that the warrant for 3101 Palmyra specifically excluded the persons of people located at that address, and the State did not set forth sufficient reason for the warrantless body cavity search.

The appellant is correct that the warrant for the search of the house did not authorize the body cavity search of her. Thus, the search which led to the discovery of the cocaine in her vagina was a warrantless search. At the time of the search, the appellant was under arrest for being a convicted felon in possession of a firearm. However, the body cavity search exceeded the scope of a search incident to arrest, as authorized by cases such as State v. Wilson, 467 So.2d 503 (La.1985), cert. den. Wilson v. Louisiana, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985), and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

[1076]*1076Similarly, in State v. Fontenot, 383 So.2d 365 (La.1980), the Louisiana Supreme Court considered the legality of a warrantless body cavity search other than of the mouth. There, the defendant and her friend had obtained a bottle of pills using a suspected illegal prescription, and were |4stopped and placed in a police car. A subsequent strip search of both suspects failed to reveal the pill bottle. The defendant’s companion then told an officer that the defendant had secreted the bottle in her vagina. The defendant and her companion were then taken to a hospital, where a pelvic examination revealed the pill bottle in the defendant’s vagina.

On appeal, the Court found that the war-rantless search of the defendant’s vagina was illegal. The Court stated:

The government’s right to search the person of the accused when legally arrested to discover and seize the fruits or evidence of crime has little applicability to searches involving intrusions beyond the body’s surface. Such intrusions are forbidden by the Fourth Amendment unless (1) there is a clear indication such evidence will be found; (2) the search is authorized by a warrant issued by a neutral and detached magistrate, absent an emergency which threatens destruction of the evidence during the delay necessary to obtain a warrant; and (3) the search or intrusion is performed in a reasonable manner. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

State v. Fontenot, 383 So.2d at 367.

The Court found that because there were no exigent circumstances which prevented the officers from obtaining a warrant to search the defendant’s vagina, the warrantless search was illegal. The Court also found that the defendant’s acquiescence to the search did not amount to a valid consent to submit to the search.

Here, as in Fontenot, the body cavity search of the appellant exceeded the scope of a search incident to her arrest for being a convicted felon in possession of a firearm. However, contrary to the appellant’s assertions, the fact that the search was illegal at the time it was conducted does not automatically mean that the evidence seized pursuant to the search must be ^suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct.

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Related

Stroud v. United States
251 U.S. 15 (Supreme Court, 1919)
Carroll v. United States
267 U.S. 132 (Supreme Court, 1925)
Lanza v. New York
370 U.S. 139 (Supreme Court, 1962)
Wong Sun v. United States
371 U.S. 471 (Supreme Court, 1963)
Schmerber v. California
384 U.S. 757 (Supreme Court, 1966)
Chimel v. California
395 U.S. 752 (Supreme Court, 1969)
Bell v. Wolfish
441 U.S. 520 (Supreme Court, 1979)
United States v. Crews
445 U.S. 463 (Supreme Court, 1980)
United States v. Loretta Mae Park
521 F.2d 1381 (Ninth Circuit, 1975)
United States v. Ferraro
590 F.2d 335 (Sixth Circuit, 1978)
State v. Crosby
338 So. 2d 584 (Supreme Court of Louisiana, 1976)
State v. Fontenot
383 So. 2d 365 (Supreme Court of Louisiana, 1980)
State v. Irby
632 So. 2d 801 (Louisiana Court of Appeal, 1994)
State v. Wilson
467 So. 2d 503 (Supreme Court of Louisiana, 1985)
State v. Welch
449 So. 2d 468 (Supreme Court of Louisiana, 1984)
Lucas v. New York
474 U.S. 911 (Supreme Court, 1985)

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Bluebook (online)
661 So. 2d 1074, 95 La.App. 4 Cir. 0324, 1995 La. App. LEXIS 2430, 1995 WL 546913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bullock-lactapp-1995.