State v. Callahan

106 So. 3d 1258, 12 La.App. 5 Cir. 492, 2012 WL 6720467, 2012 La. App. LEXIS 1706
CourtLouisiana Court of Appeal
DecidedDecember 27, 2012
DocketNo. 12-KA-492
StatusPublished

This text of 106 So. 3d 1258 (State v. Callahan) 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. Callahan, 106 So. 3d 1258, 12 La.App. 5 Cir. 492, 2012 WL 6720467, 2012 La. App. LEXIS 1706 (La. Ct. App. 2012).

Opinion

JUDE G. GRAVOIS, Judge.

I ¡After pleading guilty pursuant to State v. Crosby,1 reserving appellate review of the trial court’s ruling on his motion to suppress evidence, defendant, Thomas Callahan, Jr., has appealed. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 26, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession “in excess of 200 to 400 grams” of cocaine in violation of La. R.S. 40:967(F).2 Defendant pled not guilty to this charge on January 7, 2008. Thereafter, defendant filed a motion to suppress evidence.3 A hearing on the motion was held on April 5, 2010.

| ⅞At the hearing, Trooper Mark Fonte-not of the Louisiana State Police testified that information had been received from a confidential informant (“Cl”) in October of 2007 regarding drug trafficking in Metairie that involved an individual later identified as defendant. The Cl stated that a white male known as “Tommy” had called him and said he wanted to sell him about half a kilo of cocaine for $8,000. The Cl described Tommy as being approximately six feet tall and weighing approximately 200 to 225 pounds. The Cl told officers that Tommy would be arriving in a gray Chevy Silverado pick-up truck with a New Orleans Saints football team decal on the back window on a certain date with a quantity of cocaine he expected to sell to a legitimate purchaser. The Cl also told officers that the truck would be followed by a Pontiac (believed to be a G-6) with dark, tinted windows. The Cl said Tommy would drive to the parking garage of the Hampton Inn located near Causeway and Veterans Boulevards, and that there would be a black male waiting behind a vehicle to meet with him when he arrived.

On October 7, 2007, officers set up surveillance in the garage, and Trooper Willie Palmer, who was undercover as the purchaser that Tommy was expecting to meet, waited at the back of a vehicle in the garage. The Pontiac and the truck both arrived at garage’s entrance. The Pontiac turned around without entering and went to the Shell Station at the corner of Causeway and Veterans. Defendant entered the garage, drove the truck up to the garage’s second floor, and then drove up next to Trooper Palmer. At this point, Trooper Palmer observed cocaine in a plastic bag in plain view inside of the truck on top of its front center console. Seconds after this, Trooper Fontenot and other officers got defendant and the passenger out of the |4truck and arrested them. Defendant was arrested and advised of his Miranda4 rights; the passenger was arrested by later released.

After his arrest, defendant was taken to the Troop B State Police office in Kenner where he signed a Department of Public [1261]*1261Safety and Corrections Statement of Rights form. This form was introduced into evidence. Defendant initialed next to each right he was waiving on the form. Defendant indicated that he understood his rights, wanted to answer questions, and had not been threatened or promised anything in exchange for his answers. In his handwritten statement, defendant wrote that he spoke to “Deuce” regarding a contact, “Casey,”5 who buys cocaine. Defendant explained that Deuce put him in contact with “Mike D” to purchase a half kilogram of cocaine. Defendant said that he picked up $8,000 from Casey to purchase the cocaine. Defendant explained that when the cocaine was brought back to Casey, it was learned that the cocaine was “short” of the expected weight. Defendant was told by Casey to take the narcotics back to where it came from and to swap it back for the money.

Trooper Fontenot testified that there was a passenger in the truck with defendant at the time he was arrested. He described this black male passenger as a “source” of information who was “brokering the deal.” He explained that this person was not “documented” as an informant, but instead was just someone who provided information to them and was a “confidential source.” Trooper Fontenot testified that the Cl was not in the garage where the transaction was supposed to take place, but explained that the passenger in the truck was a friend of the CL Trooper Fontenot testified that the passenger knew the cocaine was in the truck before the truck arrived at the garage because the passenger had seen it and had called the Cl while they were driving. Trooper Fontenot testified that both Isdefendant and the passenger were arrested in the garage. However, Trooper Fon-tenot also testified that passenger’s arrest was a sham done in order to protect the passenger’s identity. Trooper Fontenot stated on the record that he did not know the identity of the passenger.

Defense counsel requested that the State furnish the name of the passenger in defendant’s truck, noting that the defense had a right to call him as a witness. The trial judge questioned defense counsel about whether defendant knew the identity of his passenger. In response, defense counsel explained that this person was provided to defendant by the CL The State argued that this was a separate issue from the purpose that they were there for on that date. Defense counsel argued however that the passenger should be a witness in the hearing.

The State provided, for the record, that the state trooper did not know the identity of the passenger who was in defendant’s truck and suggested that defendant was in the best position to know the identity of the passenger who was with him. The State added that defendant was entitled to know the identity of the passenger, but the state trooper did not know his identity. The State further argued that defendant did not have a right of confrontation of lay witnesses until trial, explaining that defendant did not have the right to call or cross-examine the State’s lay witnesses in a pretrial phase. However, the State agreed that defendant had a right to call the passenger as a witness at trial and assured the defense that it would ask the state trooper to make some investigation as to the passenger’s identity. The State specifically provided the following: “We may not know, but as an officer of the court, if I find out the name, I will give it” to defense counsel. The trial judge told the State to make the inquiry. The trial judge granted defense counsel’s request to leave the [1262]*1262hearing open and rule after receiving defense counsel’s ^memorandum, but noted that he believed the evidence supported that the motions would be denied.

On May 24, 2010, defendant filed a “Post-Hearing Memorandum,” noting that at the conclusion of the suppression hearing, the court held the matter open for him to file a memorandum addressing the issue of whether the name of the confidential source, ie., the passenger, who took part in the drug transaction should be provided to defendant in connection with the motion to suppress the evidence. In this memorandum, defendant argued that the passenger was a material witness and active participant who would not be protected by the “informer’s privilege.” He argued that since the passenger’s name was material as to the search in the matter, it should be disclosed prior to the conclusion of the suppression hearing.

The State filed a response memorandum in which it explained that it already provided on the record that it would disclose the passenger’s identity if it became known and agreed that the passenger was an essential witness whom the State would like to call as a witness at trial.

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Cite This Page — Counsel Stack

Bluebook (online)
106 So. 3d 1258, 12 La.App. 5 Cir. 492, 2012 WL 6720467, 2012 La. App. LEXIS 1706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-callahan-lactapp-2012.