State v. Burks

466 So. 2d 681
CourtLouisiana Court of Appeal
DecidedMarch 11, 1985
Docket84-KA-406, 84-KA-407
StatusPublished
Cited by6 cases

This text of 466 So. 2d 681 (State v. Burks) 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. Burks, 466 So. 2d 681 (La. Ct. App. 1985).

Opinion

466 So.2d 681 (1985)

STATE of Louisiana
v.
Michael C. BURKS.

Nos. 84-KA-406, 84-KA-407.

Court of Appeal of Louisiana, Fifth Circuit.

March 11, 1985.
Writ Denied May 24, 1985.

*682 Douglas A. Allen, Jr., Harahan, for defendant-appellant.

Dorothy A. Pendergast, Asst. Dist. Atty., Research & Appeals, Gretna, for the State.

Before CHEHARDY, BOWES and GRISBAUM, JJ.

BOWES, Judge.

Defendant-appellant, Michael Burks, was charged by separate bills of information with two violations of La.R.S. 40:966, possession with intent to distribute marijuana. The cases were consolidated and the defendant filed a motion to suppress evidence in each case, which motions were denied. The accused then plead guilty as charged, but reserved his right to appeal the adverse ruling on the suppression motions under State v. Crosby, 338 So.2d 584 (La.1976). In each case, Burks was sentenced to two years in the Jefferson Parish Correctional Center; sentence was suspended and he was placed on two years active probation. Several special conditions of probation were imposed (not at issue here) and he was also fined $1,000.00 in each case (to be paid to the Indigent Defender Board). The appeal taken in each case has been consolidated for appellate review.

On the afternoon of October 21, 1983, Agent Raymond Gibbs of the Jefferson Parish Sheriff's Office was contacted by a confidential informant (C.I.) who related that he had been in the residence of Michael Burks at 501 Wake Forest Court in Kenner, and had personally observed approximately 2 pounds of marijuana in the house. The C.I. further stated that, later the same evening, Burks would be making deliveries of the marijuana in the Kenner area and supplied a physical description of the suspect. In the past, the C.I. had proven his reliability and credibility by supplying Agent Gibbs with information which had led to a number of arrests and seizures.

After receiving the information, Agent Gibbs began an investigation during which he learned that Burks had a prior narcotics arrest in Jefferson Parish and that a white Chevrolet van was registered to Burks at the Wake Forest address. Based upon the information supplied by the C.I., and his own investigation, the officer, along with another agent, placed Burks' house under surveillance. When a subject fitting appellant's description exited the house at 11 p.m., and drove away in the van registered to the defendant, the officers followed. The driver stopped, entered a convenience store, made a small purchase, and re-entered the van. From there, he proceeded on Vintage to Lord Street. Gibbs testified that during this time the driver was observed exceeding the posted speed limit of twenty (20) miles per hour. At the intersection of Loyola and St. Julia, Agent Gibbs signalled to the driver to pull over. The driver complied and exited the van. He displayed to Agent Gibbs a driver's license in the name of Michael Burks. The deputy testified that, with the aid of a flashlight, he examined the front seat of the van, from the passenger side, observed a brown paper bag, partially torn at the bottom, which revealed a glassine bag containing green vegetable material. The defendant, on the other hand, testified that the marijuana was hidden under some newspapers and a jacket behind the seat of his van. Whichever was the case, Agent Gibbs seized the bag and field-tested a small portion of the material therein, which proved positive for the presence of marijuana. Burks was then placed under arrest and advised of his Miranda rights.

After a discussion on the scene with Agent Gibbs, Burks executed a consent form permitting the narcotics agents to search his house. At the residence, agents found four and one-half pounds of marijuana in the bedroom occupied by Michael *683 Burks and ten one-ounce bags in the bedroom identified as belonging to Burks' brother, Patrick. When questioned as to the ownership of the ten one-ounce bags, Michael Burks admitted they were his, rather than his brother's.

At the suppression hearing, the State offered testimony that the stop of the van was effected because of a routine traffic violation and that the marijuana seized was in "plain view" on the front seat, as well as arguing that the deputies had probable cause to stop and search the van, based on the information supplied by the C.I. In response to a defense request for reasons for denying the motion to suppress, the trial judge stated:

I felt that the contraband material, the marijuana, that was in question was not necessarily in plain view from the evidence that I heard, but I based my decision on the denial of the motion to suppress on the information that the police officers had obtained from the confidential informant and their verification of the confidential informant who told them by their own observations. Therefore, I felt that the search—the initial search— although the marijuana, I did not feel was in plain view, the initial search was therefore valid. For that reason and also the second search was valid because of the fact that it was a consent.

In the record, defendant assigns as error "the Court's denial of the Motion to Suppress an illegal search." This assignment was expanded in appellant's brief to the following:

1. The trial court erred when it refused to suppress evidence seized in a warrantless search of defendant-appellant's vehicle when the said evidence was seized in violation of Article 1, Section 5 of the Louisiana Constitution of 1974 and Amendment 4 of the United States Constitution.
2. The trial court erred when it refused to suppress evidence seized from the home of the defendant-appellant in a warrantless search when the said search was conducted by virtue of a consent obtained from the defendant-appellant by coercion and by false assertions of authority in violation of Louisiana Constitution of 1974, Article 1, Section 4 and Amendment 4 of the United States Constitution.

It is well-settled that a warrantless search is per se unreasonable, subject to a few specifically delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Blanchard, 374 So.2d 1248 (La.1979); U.S.Const., Amend. 4; La. Const., Art. 1, Sec. 5.

Once such exception to the warrant requirement of the Fourth Amendment was enunciated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In Carroll, supra, the Supreme Court held that a warrantless search of an automobile stopped by police officers who had probable cause to believe the vehicle contained contraband was not unreasonable within the meaning of the Fourth Amendment.

The extent of such a warrantless search was set forth recently in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982). The court stated "[t]he scope of a warrantless search based on probable cause is no narrower—and no broader—than the scope of a search authorized by a warrant supported by probable cause. Only the prior approval of the magistrate is waived; the search otherwise is as the magistrate could authorize. [footnote omitted]."

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Related

In Re Inquiry Concerning Baker
535 So. 2d 47 (Mississippi Supreme Court, 1988)
State v. Geraci
518 So. 2d 554 (Louisiana Court of Appeal, 1987)
State v. Hersman
511 So. 2d 476 (Louisiana Court of Appeal, 1987)
State v. Cathey
493 So. 2d 842 (Louisiana Court of Appeal, 1986)
State v. Vinson
482 So. 2d 48 (Louisiana Court of Appeal, 1986)
State v. Burks
468 So. 2d 1205 (Supreme Court of Louisiana, 1985)

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Bluebook (online)
466 So. 2d 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burks-lactapp-1985.