State v. Falcon

138 So. 3d 79, 13 La.App. 5 Cir. 849, 2014 WL 970174, 2014 La. App. LEXIS 628
CourtLouisiana Court of Appeal
DecidedMarch 12, 2014
DocketNo. 13-KA-849
StatusPublished
Cited by17 cases

This text of 138 So. 3d 79 (State v. Falcon) 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. Falcon, 138 So. 3d 79, 13 La.App. 5 Cir. 849, 2014 WL 970174, 2014 La. App. LEXIS 628 (La. Ct. App. 2014).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

| .Defendant, Errol Falcon Jr., now appeals his convictions on nine counts of possession of stolen things valued over $500 in violation of La. R.S. 14:69. Defendant argues the trial court erred in denying his motion to suppress the evidence first, because the warrant, pursuant to which that evidence was found, was not based on probable cause, and second, because the detectives who executed the search warrant exhibited a flagrant disregard for the warrant’s particular description of what was to be seized. For the following reasons, we find defendant’s argument to be without merit and affirm his convictions and sentences.

PROCEDURAL HISTORY

On October 16, 2009, the trial court issued a warrant authorizing the search of defendant’s home and the seizure of particular items therein which detectives believed defendant had stolen from the Walmart in Boutte. Detectives thereafter ^searched defendant’s home and seized various items which were not particularly described in the warrant. On February 11, 2010, a grand jury indicted defendant on nine counts of illegal possession of stolen things in violation of La. R.S. 14:69. Each count of the indictment alleged defendant illegally possessed various corporeal movables stolen from a specific victim. None of the items listed in the indictment [81]*81were items listed in the search warrant. Defendant filed three motions to suppress before pleading guilty on these charges.

Three Motions to Suppress

Defendant filed his first motion to suppress evidence on January 21, 2010. The trial court held a hearing on this motion on October 20, 2010. Thereafter, at a hearing on November 17, 2010, the trial court denied defendant’s first motion to suppress.

Also at the November 17, 2010 hearing, the trial court found that a video disc which contained a recording of defendant’s visit to the Walmart on December 13, 2009 was now available. The trial court ordered the state to turn over that video disc to defendant. The trial court reserved for defendant the right to file a second motion to suppress evidence, if defendant felt the December 13, 2009 recording contradicted the testimony at the hearing on the first motion to suppress.

On December 1, 2010, defendant sought a supervisory writ on the trial court’s denial of his first motion to suppress. This Court denied defendant’s writ application on February 24, 2011, stating:

[b]ased upon the showing made, we do not find the trial court erred in denying Relator’s Motion to Suppress. We conclude there was sufficient probable cause within the search warrant application to justify the issuance of the search warrant for the residence, and there was no need for a good faith exception to apply to this circumstance. Relator has an adequate remedy on appeal in the event of a conviction. Accordingly, the writ is denied.

State v. Errol Falcon, Jr., 11-29 (La.App. 5 Cir. 1/10/11) (unpublished writ).

[ 4After this Court denied defendant’s writ application, defendant sought review of the trial court’s denial of his first motion to suppress by the Louisiana Supreme Court; the Supreme Court denied defendant’s writ application on April 25, 2011. State v. Errol Falcon, Jr., 11-625 (La.4/25/11) (unpublished writ).

On June 15, 2011, defendant filed a second motion to suppress evidence.1 In it, defendant argued that the evidence against him should be suppressed because “the Sheriffs Office seized nearly 1,000 items from the defendant’s residence during the search it conducted,” the seizure disregarded the terms of the search warrant “and was nothing more than a pretex-tual search for property for which the Sheriffs office had no probable cause.” On June 23, 2011, the trial court denied defendant’s second motion to suppress evidence without a hearing or accepting new evidence, finding that defendant had not raised any new issues which defendant did not have the opportunity to raise on his previous motion to suppress.

On July 5, 2011, the trial court heard defendant’s motion for a subpoena duces tecum. Defendant sought to compel the state to bring the seized items that formed the basis of his prosecution into court. At this hearing, the district attorney admitted that there were many items seized by the state which had not been returned to victims, which may belong to defendant. The trial court denied defendant’s motion.

Defendant filed a third motion to suppress, arguing the court should suppress a statement he made to Captain Madere in which he admitted that stolen items were stored in his residence. On July 7, 2011, [82]*82the trial court held hearing on | r,defendant’s third motion to suppress. After taking testimony from Captain Mad-ere, the trial court denied this motion.2

Guilty Plea and Sentencing

After this denial of his third motion to suppress, defendant informed the court he ■wished to pled guilty. The trial court advised defendant of his rights under Boy-kin. Thereafter, defendant pled guilty, as charged, to the nine counts of possession of stolen things valued at five hundred dollars or more. Defendant made this plea pursuant to Crosby, reserving his right to appeal the denial of his motion to suppress.3 The trial court accepted defendant’s guilty plea.

On July 20, 2011, the trial court sentenced defendant to “ten years on the first two counts, to run consecutively, and then ten years on the remaining seven count [sic], to run concurrently” with the Department of Corrections. Defense counsel objected to this sentence and moved for the court to reconsider the sentence. The trial court denied defendant’s motion to reconsider his sentence.

On October 28, 2011, the state filed a motion to reduce defendant’s sentence. In it, the state argued defendant’s sentence should be reduced by three to five years because defendant had assisted the state by testifying in the trial of Joseph Austin. The trial court granted the state’s motion and reduced defendant’s sentence, stating:

at this time, I’m going to go with the recommendation of the state and reduce Mr. Falcon’s sentence. So the minutes will reflect that Mr. Falcon is sentenced to 15 years with the Department of Corrections rather than the original 20 years.

|fiAt a later hearing, the trial court amended the minutes to reflect Mr. Falcon’s sentence was “five years on count one, ten years on count two, to run consecutive. And ten years on count [sic] three through nine to run concurrent with one and two.”

Additional Procedural History

On December 19, 2011, defendant filed a motion for return of seized property. This was a joint motion on behalf of defendant, Ms. Tracie Wright, and defendant’s father, Errol Falcon, Sr. At the hearing on this motion on March 27, 2012, movants’ counsel argued that they were entitled to the return of the seized property still possessed by the sheriffs office, which was not returned to victims or otherwise identified as stolen. Movants’ counsel also complained that while the Sheriffs Office had returned property belonging to Mr. Falcon Sr., it would not return his son’s property to him. This was problematic because his son, defendant, was incarcerated and could not retrieve the property himself.

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Cite This Page — Counsel Stack

Bluebook (online)
138 So. 3d 79, 13 La.App. 5 Cir. 849, 2014 WL 970174, 2014 La. App. LEXIS 628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-falcon-lactapp-2014.