State v. Freeman

33 So. 3d 222, 2010 La. App. LEXIS 78, 2010 WL 293184
CourtLouisiana Court of Appeal
DecidedJanuary 27, 2010
Docket44,980-KA
StatusPublished
Cited by7 cases

This text of 33 So. 3d 222 (State v. Freeman) 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. Freeman, 33 So. 3d 222, 2010 La. App. LEXIS 78, 2010 WL 293184 (La. Ct. App. 2010).

Opinions

GASKINS, J.

| ,The defendant, Jeremy Johntay Freeman, was charged with possession of a firearm by a convicted felon, illegal carrying of weapons (felony grade), and possession of a Schedule II controlled dangerous substance (CDS), i.e., cocaine. Pursuant to State v. Crosby, 338 So.2d 584 (La.1976), he pled guilty to possession of a firearm by a convicted felon and possession of cocaine, reserving his right to appeal the trial court’s denial of his motion to suppress. The charge of illegal carrying of weapons was dismissed. He received agreed-upon concurrent sentences of 10 years at hard labor without benefit of parole, probation or suspension of sentence on the firearm [224]*224charge and five years at hard labor on the drug charge. The defendant appeals the trial court’s ruling on his motion to suppress. We affirm.

FACTS

On the morning of April 13, 2007, the deféndant was driving his gray Ford Crown Victoria through the village of Forest, Louisiana. He was accompanied by an unidentified female. James Smith, the village’s chief of police, clocked the defendant driving about 59 mph in a 45-mph zone. At about 8:55 a.m., Chief Smith stopped the defendant’s vehicle for speeding and asked for his license and registration. When the chief called in the license and registration to the dispatcher of the West Carroll Sheriffs office, he was informed that the defendant had outstanding warrants for aggravated assault and simple battery. He was instructed to hold the defendant until a deputy was sent to take him into custody.

12Peputy Christopher Varner received a call at 9:05 a.m. to go to Forest to arrest the defendant on the outstanding warrants. He arrived on the scene at 9:15 a.m. He placed the defendant under arrest and put him in his patrol car. Mindful of the defendant’s reputation for drug trafficking, Deputy Varner asked the defendant for permission to search his vehicle. The defendant refused.

Deputy Varner requested that Deputy John Warner, a narcotics officer, be sent to the scene with his drug dog, Bella. Deputy Warner received the request at 9:20 a.m. He and Bella arrived at 9:25 a.m. Deputy Warner walked around the car. Although he did not see any drugs in plain view inside the vehicle, he smelled an odor he recognized as marijuana emanating from the partially open driver’s window. When Bella walked around the car, she alerted to the driver’s side door.

After Deputy Warner informed him that Bella had alerted, Deputy Varner searched the defendant’s car. In the center console, he discovered a plastic container with a green leafy substance. Subsequent laboratory analysis determined that the contents of the container included marijuana and cocaine. Additionally, a semiautomatic High Point nine-millimeter pistol was found wrapped in a rag or towel; the weapon was located behind the passenger’s seat on the floorboard, within reach of the driver of the vehicle.

The defendant, who had prior felony convictions for illegal use of weapons and carrying a firearm on a school campus, was charged with |spossession of a firearm by a convicted felon, illegal carrying of weapons (felony grade), and possession of cocaine.

The defendant filed a motion to suppress the evidence found during the warrantless search of his vehicle. Following a hearing, the trial court denied the motion. After the U.S. Supreme Court rendered its opinion in Arizona v. Gant, — U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the defendant sought reconsideration of the trial court’s ruling on the motion to suppress. Upon reconsideration, the trial court again denied the motion.

Pursuant to a Crosby plea, the defendant pled guilty to possession of a firearm by a convicted felon and possession of cocaine while reserving his right to appeal the denial of his motion to suppress. The charge of illegal carrying of weapons was dismissed. The defendant received agreed-upon sentences of 10 years at hard labor without benefits on the firearm charge and five years at hard labor on the cocaine charge, the sentences being ordered to run concurrently. The state also agreed to not file a multiple offender bill [225]*225against the defendant or pursue a May 2008 charge of cocaine distribution.

On appeal, the defendant challenges the trial court’s denial of his motion to suppress the evidence found in the search of his car, particularly in light of the Gant decision.

LAW

The right of every person to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the | ,tFourth Amendment to the United States Constitution and Article I, § 5, of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. O’Neal, 44,067 (La.App.2d Cir.4/8/09), 7 So.Sd 182.

When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. O’Neal, supra.

This court reviews the district court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to findings of law. State v. Collins, 44,248 (La.App.2d Cir.5/27/09), 12 So.3d 1069.

In order to stop an individual in his automobile without a warrant, a police officer must have a reasonable suspicion that the individual has committed, or is about to commit, an offense, including the violation of a traffic regulation. State v. Pag-gett, 28,843 (La.App.2d Cir.12/11/96), 684 So.2d 1072.

One exception to the warrant requirement is when there is probable cause to search an automobile. The warrantless search of an automobile is not unreasonable if there is probable cause to justify the search, without | r,proving additional exigency, when the automobile is readily mobile because there is an inherent risk of losing evidence. Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); State v. Brown, 42,188 (La.App.2d Cir.9/26/07), 966 So.2d 727, writ denied, 2007-2199 (La.4/18/08), 978 So.2d 347.

If the police officer has a specific suspicion of criminal activity, he may further detain the individual or the property while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. United States v. Shatpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); State v. Stowe, 44,815 (La.App.2d Cir.10/28/09), 25 So.3d 945.

There is no bright line rule for when a detention lasts too long. Each instance must be assessed in view of the surrounding circumstances. State v. Arrington, 556 So.2d 263 (La.App. 2d Cir.1990); State v. Stowe, supra.

An officer’s detection of the odor of burnt marijuana emanating from the defendant’s vehicle may provide probable cause for the search of his vehicle. See State v. Johnlouis, 2009-235 (La.App.

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State v. Freeman
33 So. 3d 222 (Louisiana Court of Appeal, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
33 So. 3d 222, 2010 La. App. LEXIS 78, 2010 WL 293184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-freeman-lactapp-2010.