State v. Cortez

98 So. 3d 382, 11 La.App. 5 Cir. 1041, 2012 La. App. LEXIS 701, 2012 WL 1868141
CourtLouisiana Court of Appeal
DecidedMay 22, 2012
DocketNo. 11-KA-1041
StatusPublished
Cited by6 cases

This text of 98 So. 3d 382 (State v. Cortez) 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. Cortez, 98 So. 3d 382, 11 La.App. 5 Cir. 1041, 2012 La. App. LEXIS 701, 2012 WL 1868141 (La. Ct. App. 2012).

Opinion

CLARENCE E. McMANUS, Judge.

I STATEMENT OF THE CASE

On February 28, 2011, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant, Laine E. Cortez, with creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance in violation of LSA-R.S. 40:988 (count one), distribution/possession with intent to distribute methamphetamine in violation of LSA-R.S. 40:967(A)(1) (count two), and possession of methamphetamine in violation of LSA-R.S. 40:967(C)(2).

Defendant pled not guilty to these charges at her arraignment on March 2, 2011. On June 16, 2011, a hearing was conducted on defendant’s motion to suppress evidence and on August 3, 2011, the trial court denied the motion to suppress.

On August 23, 2011, defendant was advised of her Boykin rights and pled guilty to counts one and three. The waiver of rights form includes a factual explanation of this case: “That on or about January 1, 2011 defendant did allow a Meth lab to be run in her home and she did possess Meth[.]” Further, during the guilty plea colloquy, defendant provided the following: “I allowed methamphetamine to be made in my home for [sic], and I had it in my possession for my personal, personal [sic] use.”

|sAfter sentencing delays were waived, the trial court sentenced defendant to ten years imprisonment with the DOC as to count one and five years imprisonment with the DOC as to count three, to run concurrently with each other. Five years of the sentence was suspended, and defen[386]*386dant was placed on active probation for five years.

Although the transcript did not mention that the guilty pleas were entered pursuant to Crosby, the waiver of rights form filed in the record does indicate that the pleas were pursuant to Crosby. On August 25, 2011, defendant filed a motion to amend the minutes, contending that the plea was a Crosby plea as indicated in.the “Boykin,” but that counsel had failed to indicate the basis of the Crosby plea for the record. Defendant requested that the minute entry be corrected to show the basis for the appeal was the denial of the motion to suppress. According to the September 8, 2011 minute entry, after considering defendant’s motion to amend, the court noted that defendant’s guilty pleas on August 23, 2011, were pursuant to Crosby in regards to the motion to suppress.

On September 28, 2011, defendant filed a motion for Crosby appeal and designation of record. The trial court granted the appeal on October 3, 2011. This appeal follows.

DISCUSSION

First, we note that defendant failed to file her motion for appeal within the legally allotted time period. Defendant was sentenced on August 23, 2011. She filed a written motion for appeal on September 28, 2011. According to LSA-C.Cr.P. art. 914, a motion for an appeal must be made no later than 30 days after the rendition of the judgment or ruling from which the appeal is taken or 30 days from the ruling on a motion to reconsider sentence filed pursuant to LSA-C.Cr.P. art. 881.1, if one is filed. In this case, a motion to reconsider sentence was not | Tiled. As such, defendant had 30 days from August 23, 2011, the date of her sentencing, to file her appeal and failed to do so. However, between sentencing and filing the motion for appeal, defendant was attempting to correct the record to reflect that her plea was pursuant to Crosby and involved the denial of the motion to suppress. The trial court granted defendant’s motion for appeal, the State has not complained about any procedural irregularities in the ordering of the appeal, and the trial court appointed the Louisiana Appellate Project to represent defendant. Therefore, we will address the merits of the appeal by defendant.

ASSIGNMENT OF ERROR NUMBER ONE

In her only assignment of error, defendant argues that the search conducted by Sergeant Howell, after he was contacted by Sergeant Wale concerning the contents of the house and before he secured the search warrant, was unconstitutional. Defendant suggests that the trial court attempted to excuse the warrantless search on the basis that Sergeant Howell was faced with exigent circumstances that prevented him from securing a warrant, but argues that the facts failed to support this position. Defendant also argues that the court approved the search because the items were discovered in plain view but failed to account for the fact that the State failed to prove that Sergeant Howell had a right to be in the place where he observed the items. Defendant claims that because the State failed to prove either exigent circumstances justified the search or Sergeant Howell had a right to be in the residence at the time he made his observations in plain view, the evidence should be suppressed.

At the suppression hearing, Sergeant Edward Howell of the St. John the Baptist Parish Sheriffs Office was the only witness to testify. He testified that on January 1, 2011, he participated in an investigation that led to the arrest of defendant and [387]*387others. He explained the events leading to the arrests. He said that | Bon January 1, 2011, he was off duty but had his police radio on when he heard members of the Felony Intercept Unit and the Detective Bureau asking where Bobby Boudreaux was living at the time. They were looking for Darren Sterling regarding a shooting incident or an attempted murder charge and he was supposed to be “hiding out” with Boudreaux. Sergeant Howell called Sergeant Wale and advised him that Bou-dreaux had been under investigation by the Narcotics Bureau for several months in reference to methamphetamine production and believed that he was staying with defendant at her residence at 246 East Twelfth Extension Street in Reserve. He warned Sergeant Wale that if he made entry into the residence to be cautious because there could be a methamphetamine lab inside the residence with many hazardous chemicals. He was concerned about the safety of the officers and occupants. He advised Sergeant Wale to be on the lookout for precursors for manufacturing or for an active lab in the residence.

Sergeant Wale called Sergeant Howell about an hour later to inform him that he had observed numerous items throughout the residence in plain view and believed they were consistent with the manufacturing of methamphetamine. Defendant had given the officers permission to enter her house to detain Sterling.

Sergeant Howell went to the residence after hearing about the items observed. He believed that an active lab was in the residence and wanted to confirm that the lab was not in the process of cooking. He explained that there was no time to get a search warrant, which could have taken hours, because if they were in the process of cooking, there could have been an explosion. All subjects were detained inside of the residence. Sergeant Howell went through each room and took a “quick look” around. He observed several precursors in plain view. He observed camp fuel and lye in Boudreaux’s bedroom and in defendant’s bedroom. He found coffee filters throughout the residence. Sergeant Howell explained that 16he noticed there was a light odor from cooking methamphetamine present when he walked into the front door and there was a strong odor in the kitchen, which was coming from the garage. He believed that he had to make sure there was no active lab in the garage where methamphetamine was. being cooked.

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Bluebook (online)
98 So. 3d 382, 11 La.App. 5 Cir. 1041, 2012 La. App. LEXIS 701, 2012 WL 1868141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cortez-lactapp-2012.