State v. Cabanas

594 So. 2d 404, 1991 WL 310752
CourtLouisiana Court of Appeal
DecidedDecember 27, 1991
DocketKA 90 1913
StatusPublished
Cited by17 cases

This text of 594 So. 2d 404 (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, 594 So. 2d 404, 1991 WL 310752 (La. Ct. App. 1991).

Opinion

594 So.2d 404 (1991)

STATE of Louisiana
v.
Alex J. CABANAS.

No. KA 90 1913.

Court of Appeal of Louisiana, First Circuit.

December 27, 1991.
Writ Denied May 15, 1992.

William R. Campbell, Jr., New Orleans, John J. Williams, Jr., Asst. Dist. Atty. Covington, La. for the State.

*405 Roy K. Burns, Jr. Covington, for defendant.

Before WATKINS, CARTER and FOIL, JJ.

FOIL, 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) (redesignated F(1)(c) by 1989 La.Acts, No. 369, § 1). Defendant pled not guilty. Following an August 12, 1988, hearing (first hearing), the district court denied defendant's motions to suppress the seized contraband and inculpatory statements. Defendant then withdrew his plea of not guilty and pled guilty as charged, expressly reserving his right to appeal the adverse ruling on the motions. State v. Crosby, 338 So.2d 584 (La.1976).

On appeal to this Court, defendant urged in a single assignment of error that the district court erred by denying his motions to suppress. State v. Cabanas, 552 So.2d 1040 (La.App. 1st Cir.1989), writ denied, 556 So.2d 41 (La.1990). In addressing that assignment, we noted that defendant's argument consisted of two parts, which (for purposes of review) we denominated argument number one and argument number two. Argument number one alleged 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 alleged that the state failed to prove defendant's inculpatory statements were not made under the influence of inducements.

In conditionally affirming defendant's conviction, this Court found no merit in defendant's argument number two. Id. at 1046. However, in regard to defendant's argument number one, we found it appropriate to remand the case to the district court for a reopened suppression hearing because of a hiatus in the record, i.e., the evidence introduced at the suppression hearing failed to adequately establish the duration of the alleged illegal detention. Id. at 1045-46. Additionally, we found as patent error that the sentence imposed by the district court constituted an illegal, indeterminate sentence; accordingly, we vacated defendant's sentence with instructions to the district court for resentencing defendant on remand of the case. Id. at 1046-47.

On remand, the district court held a reopened suppression hearing on April 23, 1990. The court took the matter under advisement and, later, denied the motion to suppress the contraband and inculpatory statements, in effect finding no merit to defendant's argument number one. Subsequently, the district court resentenced defendant to imprisonment at hard labor for a term of twenty-five years, without benefit of probation, parole or suspension of sentence but with credit for all time previously served.[1] In this appeal, defendant claims in a single assignment of error that the district court's ruling on remand, denying the motion to suppress, was erroneous.

At the first hearing, the state presented the testimony of Louisiana State Police Troopers Joe Guthrie, Jr. and Philip Stanford, and Louisiana State Police Officer Darryl Graham. At the reopened hearing, Stanford was the state's only witness. Defendant did not present any testimony at either hearing.

As supplemented by the evidence introduced at the reopened hearing, the record reveals the following facts: At about 3:00 a.m. on February 13, 1988, Guthrie was operating his moving radar while patrolling the eastbound lanes of I-12. As Guthrie approached 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 *406 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.

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 I-12 onto U.S. Highway 11, where Stanford stopped the El Camino driven by defendant at about 3:10 a.m.

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 "time" to sift through various papers in the packet and locate the registration. The driver's license defendant produced was a valid Florida license and the El Camino bore a Florida license plate. Stanford asked defendant basic information to fill out a traffic citation for defendant's speeding violation, i.e., questions concerning the name of defendant's employer, defendant's intended destination, and who owned the El Camino. Defendant responded that the vehicle belonged to a friend; but, when Stanford asked defendant the friend's name, defendant could not tell him the individual's name.

Defendant gave two different answers in response to Stanford's inquiry about his destination. Initially, defendant stated that he was going to Baton Rouge. According to Stanford, the highway on which defendant was travelling (when stopped) led to Baton Rouge. In his second answer, defendant stated that he was going to New Orleans. However, Stanford testified that defendant passed the exit leading to New Orleans. 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. He suspected that defendant might have stolen the El Camino. Stanford returned to his police unit and, at 3:14 a.m., requested a vehicle registration check and a stolen vehicle check of the El Camino. He was advised of a computer problem which rendered access to the requested information temporarily unavailable.

Stanford returned to defendant's vehicle where defendant sat. He 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 conferred with defendant, trying to complete the citation for defendant's speeding violation. Stanford checked the serial number which was visible through the windshield of the El Camino against a corresponding number appearing on the registration and determined the numbers matched. About that time, 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. Stanford's suspicions increased and he summoned Guthrie to the scene for a conference.

Guthrie arrived at the scene about five minutes after the stop. Stanford testified that, after he conferred with Guthrie, they thought they had "articulable reason[s]" to ask for defendant's permission to search the El Camino.

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Cite This Page — Counsel Stack

Bluebook (online)
594 So. 2d 404, 1991 WL 310752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cabanas-lactapp-1991.