State v. Cabanas

552 So. 2d 1040, 1989 WL 140763
CourtLouisiana Court of Appeal
DecidedNovember 14, 1989
Docket88 KA 1726
StatusPublished
Cited by13 cases

This text of 552 So. 2d 1040 (State v. Cabanas) 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. Cabanas, 552 So. 2d 1040, 1989 WL 140763 (La. Ct. App. 1989).

Opinion

552 So.2d 1040 (1989)

STATE of Louisiana
v.
Alex J. CABANAS.

No. 88 KA 1726.

Court of Appeal of Louisiana, First Circuit.

November 14, 1989.
Writ Denied January 5, 1990.

*1041 William R. Campbell, New Orleans, for appellee.

Walter P. Reed, Dist. Atty., Parish of St. Tammany, Roy K. Burns, Jr., and James Looney, Covington, for appellant.

Before CARTER, SAVOIE and ALFORD, JJ.

SAVOIE, Judge.

Alex J. Cabanas was charged by bill of information with possession of four hundred grams or more of cocaine, a violation of LSA-R.S. 40:967 C and 40:967 F(3). Defendant pled not guilty and filed a written motion to suppress the seized contraband and inculpatory statements, supplemented by an oral motion to suppress.[1] Following a hearing, the motions to suppress were denied. Thereafter, defendant withdrew his plea of not guilty and pled guilty as charged. Defendant expressly reserved the right to appeal the adverse ruling on the motions to suppress. State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced defendant to imprisonment at hard labor for twenty-five years; and the court ordered that fifteen years of the sentence shall not be suspended, deferred or withheld and that, for "at least" fifteen years of the twenty-five year sentence, defendant shall not be eligible for probation or parole.

Defendant brings this appeal, urging as his sole assignment of error that the trial court erred by denying his motions to suppress.[2]*1042 Defendant's argument in regard to this assignment consists of two parts, which (for purposes of our review) we have denominated argument number one and argument number two. Argument number one alleges that, because defendant's detention was illegal, his subsequent consent to search, the physical evidence seized during the search and his inculpatory statements were impermissible fruits of the illegal detention and should have been suppressed. Argument number two alleges that the state failed to prove defendant's inculpatory statements were not made under the influence of inducements. As set forth more fully hereinafter, we find that this case must be remanded to the trial court for a reopened suppression hearing only as to argument number one and that argument number two has no merit.

At the hearing on defendant's motions to suppress, the state presented the testimony of Louisiana State Police Troopers Joe Guthrie, Jr., and Philip Stanford and Louisiana State Police Officer Darryl Graham. Defendant did not present any testimony.

According to Guthrie, on February 13, 1988, at about 3:00—3:15 a.m., he was operating his moving radar while patrolling the eastbound lanes of I-12. As Guthrie was approaching the I-10, I-12, I-59 split, he detected a light colored "El Camino type" vehicle traveling 73 m.p.h. in one of the westbound lanes with a posted speed limit of 65 m.p.h. Because it was physically impossible for Guthrie to cross the highway median at his location to pursue the speeding vehicle, he radioed Stanford who was patrolling the eastbound lanes behind him. Guthrie informed Stanford of the approaching speeding vehicle.

Stanford testified that Guthrie notified him at about 3:00 a.m. that the next approaching vehicle had been traveling at 73 m.p.h. In response, Stanford crossed the highway median and observed a single vehicle, a Chevrolet El Camino truck, westbound in the right lane. Stanford gave pursuit. In what appeared to Stanford to be an effort to elude him, defendant exited 1-12 onto U.S. Highway 11, where Stanford stopped the El Camino defendant was driving.

After stopping the El Camino, Stanford told defendant to exit the vehicle and to bring his driver's license and the vehicle's registration with him. Defendant exited the vehicle with his driver's license and a packet which contained the registration. According to Stanford, it took them "time" to sift through various papers in the packet and locate the registration. The record reflects that the El Camino bore a Florida license plate. Stanford asked defendant if the El Camino belonged to him. Defendant replied in the negative. Stanford then asked defendant who owned the El Camino, and defendant could not give him the name of the owner. Stanford then asked defendant where he was going and who was his employer. In response to Stanford's inquiry as to defendant's destination, defendant gave two different answers. Initially, defendant stated that he was going to Baton Rouge. According to Stanford, the highway on which defendant was travelling (when stopped) would have led to Baton Rouge. In his second answer, defendant stated that he was going to New Orleans. However, Stanford testified that defendant had passed the exit leading to New Orleans; and, thus, Stanford concluded that defendant had given him evasive answers. Stanford had particular experience in the recovery of stolen vehicles, having led the state in the recovery of such vehicles for two years.

Suspecting that defendant might have stolen the El Camino, Stanford returned to his police unit and requested a vehicle registration check and a stolen vehicle check of the El Camino. Upon making his request, Stanford was advised of a computer problem which rendered access to the requested information temporarily unavailable. Stanford testified that, in instances of such computer problems, it sometimes *1043 takes twenty-five to thirty minutes or as little as approximately five minutes up to a maximum of about an hour to receive a response. Guthrie, who was later called to the scene by Stanford, testified that he did not remember whether or not the computer was "up or down" on the day in question.

After being told of the computer problem, Stanford returned to defendant's vehicle. At that time, defendant was seated inside the vehicle. Stanford informed defendant of the expected delay occasioned by the computer problem and that defendant would have to continue to wait for the computer response which would be furnished as soon as possible. In the interim, Stanford was still actively trying to pursue completing a citation for defendant's speeding violation and conferring with defendant. While checking the serial number which was visible through the windshield of the El Camino against a corresponding number appearing on the registration, Stanford determined the numbers matched; and, apparently, it was about that time that Stanford smelled a strong odor of fabric softener. Based on Stanford's experience, he knew that a heavy odor of fabric softener is sometimes used to mask illegal drugs in order to thwart detection by drug detector dogs. Upon smelling the odor of fabric softener, Stanford's suspicions increased; and he then summoned Guthrie to come to the scene in order that he could confer with Guthrie.

In response to Stanford's request, Guthrie went to the scene of the stop. According to Guthrie, he arrived there about five to ten minutes after he had notified Stanford of the approach of defendant's speeding vehicle. Stanford testified that, when Guthrie came to the scene of the stop, Guthrie "stayed back." Stanford further testified that, after he had conferred with Guthrie, they thought they had "articulable reason[s]" to ask for defendant's permission to search the El Camino. Stanford articulated his reasons for not allowing defendant to leave the scene (after the issuance of a speeding citation) and for asking for defendant's consent to search the El Camino, as follows. The El Camino did not belong to defendant, and defendant did know the name of its owner. The weather was very cold with a temperature of 38 degrees.

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Cite This Page — Counsel Stack

Bluebook (online)
552 So. 2d 1040, 1989 WL 140763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cabanas-lactapp-1989.