State v. Burciaga

924 So. 2d 1125, 5 La.App. 5 Cir. 357
CourtLouisiana Court of Appeal
DecidedFebruary 27, 2006
Docket05-KA-357
StatusPublished
Cited by17 cases

This text of 924 So. 2d 1125 (State v. Burciaga) 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. Burciaga, 924 So. 2d 1125, 5 La.App. 5 Cir. 357 (La. Ct. App. 2006).

Opinion

924 So.2d 1125 (2006)

STATE of Louisiana
v.
Gilbert J. BURCIAGA.

No. 05-KA-357.

Court of Appeal of Louisiana, Fifth Circuit.

February 27, 2006.

*1127 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

Holli Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marrero, Louisiana, for Defendant/Appellant.

Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.

WALTER J. ROTHSCHILD, Judge.

On May 1, 2003, the Jefferson Parish District Attorney filed a bill of information charging defendant, Gilbert Burciaga, with possession of hydrocodone, a violation of LSA-R.S. 40:967 C. Defendant was arraigned on May 21, 2003, and pled not guilty.

Defendant filed various pre-trial motions, including a motion to suppress evidence. The trial court held a hearing on the motion to suppress evidence on July 23, 2003, and took the matter under advisement. The court granted the motion in open court on July 28, 2003.

The State applied to this Court for supervisory writs, challenging the trial court's ruling. State v. Gilbert J. Burciaga, Writ No. 03-K-1137. On September 25, 2003, this Court granted writs and reversed the trial court's ruling. Defendant applied for writs to the Louisiana Supreme Court. State v. Gilbert J. Burciaga, Writ No. 2003-KK-3185. On February 6, 2004, the Supreme Court denied writs, 865 So.2d 726(La.2/6/04).

On June 14, 2004, the trial court advised defendant of his constitutional rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant indicated that he understood his rights and wished to waive them. He withdrew his plea of not guilty and entered a plea of guilty as charged, reserving his appeal rights under State v. Crosby, 338 So.2d 584 (La.1976). Pursuant to a plea agreement, the trial court sentenced defendant to two and one-half years at hard labor, and ordered that the sentence run concurrently with two misdemeanor sentences imposed that day in a separate case.

The State filed a habitual offender bill on June 14, 2004, alleging defendant to be a second felony offender. On that day the judge advised him of his right to remain silent and his right to a habitual offender hearing. Defendant stated that he understood his rights, and that he wished to waive them and enter an admission to the habitual offender allegations. The judge vacated defendant's original sentence and imposed a habitual offender sentence of two and one-half years at hard labor.

Defendant now appeals on the basis of one assignment of error. For the reasons stated herein, we affirm.

FACTS

The facts surrounding the charged offense are found in the suppression hearing testimony. Officer Brian Rico of the Gretna Police Department testified that he was on patrol duty on the evening of April 4, 2003. At dusk he saw defendant, Gilbert Burciaga, in the shadows next to a residence *1128 on Lafayette Street. Officer Rico stopped his patrol car and asked defendant if he lived there. Defendant responded that he did not.

Officer Rico got out of his car and asked defendant to step closer to him. Defendant complied, and Officer Rico performed a pat-down search of his outer clothing for weapons. The officer did not find any weapons. Officer Rico discussed the pat-down with defendant, and defendant said he did not have anything. Defendant put his hands into his pants pockets and emptied them of their contents. Officer Rico saw that defendant had a white pill in his left hand. When Officer Rico asked him what the pill was, defendant said it was Vicodin. Defendant then said, "`I forgot that was in here.'" Officer Rico asked defendant whether he had a prescription bottle for the pill, and defendant said he did not. The officer placed defendant under arrest for possession of a controlled dangerous substance.

DISCUSSION

Defendant contends by the instant appeal that the trial court properly granted his motion to suppress the evidence seized by Officer Rico, and that this Court erred in reversing the trial court's ruling.

In granting defendant's suppression motion, the trial court stated:

I am hesitant to discourage diligent police work and I believe that this was diligent police work. I don't believe it was overly aggressive. I think it was honest and diligent. But to begin with, the reasonable suspicion upon which the stop in question was originally done, was the barest. But I think Ms. Taylor [defense counsel] also has a point, at some point when it was not obvious that the crime was afoot and that the defendant was no longer under suspicion, questioning really had to stop. And when all things are considered, when you add those together and consider all factors, I just believe the—Although I hesitate and I wish I didn't need to, I think the motion has to be granted.

In reversing the trial court's ruling, this Court issued the following writ disposition:

Our review reveals that the controlled dangerous substance in question was seized after the defendant voluntarily revealed it to Lt. Gibbs (sic). Because Lt. Gibbs (sic) was lawfully in a position to view the pill, its incriminating character was immediately apparent and verified by the defendant, Lt. Gibbs (sic) had a lawful right of access to the pill. See Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Henderson, 99-471 (La.App. 5 Cir. 10/26/99), 746 So.2d 173, 177. We find that the trial judge erred in granting defendant's motion to suppress. This writ application is hereby granted and the matter is remanded for proceedings consistent with this ruling.

In addressing defendant's complaint, it is first necessary to consider the "law of the case" principle. Under that doctrine, an appellate court will generally refuse to consider its own rulings of law on a subsequent appeal in the same case. State v. Hollimon, 04-1195 (La.App. 5 Cir. 3/29/05), 900 So.2d 999; State v. Junior, 542 So.2d 23 (La.App. 5 Cir.1989), writ denied, 546 So.2d 1212 (La.1989). Reconsideration of a prior ruling is warranted when, in light of a subsequent trial court record, it is apparent that the determination was patently erroneous and produced unjust results. In re K.R. W., Jr., 03-1371 (La.App. 5 Cir. 5/26/04), 875 So.2d 903, 905.

Defendant argues on appeal that this Court's writ disposition was patently erroneous. He argues that the officer did not have the reasonable suspicion necessary to *1129 support a valid stop and pat-down search. Defendant further argues that, even if Officer Rico acted within his authority in stopping him, he exceeded that authority by seizing the pill that he took out of his pocket. Defendant moves this Court to reinstate the trial court's ruling, and to set aside his conviction and sentence. The State argues that this Court considered and resolved the issues raised here in disposing of its writ application, and the law of the case doctrine requires that this Court now affirm defendant's conviction.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures.

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Cite This Page — Counsel Stack

Bluebook (online)
924 So. 2d 1125, 5 La.App. 5 Cir. 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burciaga-lactapp-2006.