State v. Howard

120 So. 3d 831, 2013 WL 3378816, 2013 La. App. LEXIS 1390
CourtLouisiana Court of Appeal
DecidedJuly 3, 2013
DocketNo. 2012-KA-1117
StatusPublished
Cited by2 cases

This text of 120 So. 3d 831 (State v. Howard) 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. Howard, 120 So. 3d 831, 2013 WL 3378816, 2013 La. App. LEXIS 1390 (La. Ct. App. 2013).

Opinions

TERRI F. LOVE, Judge.

|! This appeal arises from the Crosby plea and sentencing of Leon Howard, who reserved his right to appeal the trial court judge’s ruling on his motion to suppress, which the trial court judge previously denied. We find that the trial court judge erred in denying the motion to suppress because the New Orleans police officers’ entry into his home was unjustified because no exigent circumstances existed and the subsequently issued search warrant was partially based on information discovered during the illegal entry. Therefore, the trial court judge erred in not suppressing the evidence found in Leon Howard’s home. Accordingly, we reverse the trial court judge’s ruling on the motion to suppress the evidence, vacate Leon Howard’s guilty pleas and sentences, and remand the case for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Leon Howard was charged by bill of information with possession with intent to distribute marijuana, in violation of La. R.S. 40:966(A)(1), and possession of a firearm by a convicted felon, in violation of La. R.S. M^.l.1 The record does not indicate if or when an arraignment was held.2 However, both Mr. Howard and 12the State agree that on or around February 29, 2011, Mr. Howard entered a plea of not guilty.

Subsequently, Mr. Howard filed several pretrial motions including a Motion for Preliminary Hearing and a Motion to Suppress the Evidence. The trial court judge found probable cause to substantiate the charges and denied Mr. Howard’s Motion to Suppress. Mr. Howard filed an application for supervisory writ seeking review of the denial of the Motion to Suppress. This Court denied Mr. Howard’s supervisory writ application due to an adequate remedy on appeal, if convicted.

[834]*834At trial, Mr. Howard withdrew his prior plea and entered into a plea bargain with the State, whereby Mr. Howard agreed to plead guilty to the charge of possession with the intent to distribute marijuana and to the lesser charge of illegal carrying of a firearm, in violation of La. R.S. 14:95(A), in exchange for the State’s recommendation of a five-year suspended sentence on the drug charge and a six-month suspended sentence on the firearm charge.3 Upon entering his guilty plea, Mr. Howard reserved his right to appellate review of the trial court judge’s ruling on his Motion to Suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

The trial court judge accepted the plea and sentenced Mr. Howard to five years at hard labor for the charge of possession with intent to distribute marijuana, with credit for time served. The trial court judge suspended the five-year sentence, placed Mr. Howard on active probation for five years, assessed a $1,000.00 fine, and $191.50 in court costs. The trial court judge also accepted the plea for the illegal carrying of a firearm charge and sentenced Mr. Howard to six months at Orleans Parish Prison, with credit for time served. The trial court judge suspended lathe six-month sentence, placed Mr. Howard on six months inactive probation, and assessed a $149.00 fine.4 The trial court judge ordered that the sentences for both charges run concurrently with each other and any other sentences. Mr. Howard’s timely appeal followed.5

TESTIMONY

At the hearing on Mr. Howard’s Motion to Suppress, the only witness to testify was Detective Andrew Roccaforte of the Narcotics Division of the New Orleans Police Department (“NOPD”). Detective Roccaforte stated that he has been a narcotics detective for almost fifteen years and approximated that he conducted thousands of narcotics investigations.

Detective Roccaforte testified that on August 30, 2010, he received information from a confidential informant (“Cl”) that a twenty-seven year old black male named “Leon,” later identified as Mr. Howard, was storing marijuana and cocaine at 423 South Salcedo Street. The Cl stated that Mr. Howard drove a white Cadillac Esca-lade or Cadillac truck and used the vehicle to deliver drugs. The Cl also provided the license plate of the vehicle. Detective Roccaforte testified the Cl is reliable, that he used the Cl for narcotic investigations since 2004, and made numerous arrests and convictions based on tips provided by the CI.

[835]*835After receiving this information, on September 1, 2010, Detective |4Roccaforte and a few members of his unit set up surveillance on 423 South Salcedo Street. The NOPD officers were all in separate unmarked police cars and in plain clothes. Detective Roccaforte stated that during the surveillance, at approximately 5:80 p.m., he observed Mr. Howard drive up in a white truck, exit the driver’s side of the vehicle, and enter the South Salcedo Street residence. An hour later, Detective Roc-caforte observed Mr. Howard come out of the residence and drive off in the truck. Detective Roccaforte and his team followed Mr. Howard and observed him stop in the 3200 block of Palmyra Street. Subsequently, an unidentified black male, who was sitting on the porch of a nearby house, entered the passenger side of the truck. A few seconds later Detective Roccaforte observed the black male exit the truck. Detective Roccaforte testified that although he could not see inside the truck, the brief exchange between Mr. Howard and the unidentified black male was suspicious.

Detective Roccaforte continued to follow Mr. Howard and observed Mr. Howard stop the truck at a playground at Baudin Street and South Clark Street. On cross-examination, Detective Roccaforte testified that the playground was known for drug activity. He then observed a young black male, approximately twenty years old, walk from the park bleachers and enter the passenger side of the white truck. Thirty seconds later the black male exited the truck and returned to the park bleachers where other men were sitting. Detective Roccaforte testified that based on his past experience in narcotics investigation and the brevity of their encounter, he believed the men engaged in a drug deal.

Thereafter, Mr. Howard drove off and two plain clothes NOPD officers, Detective Chris Henly and Sergeant Jeff Sislo, entered the park with their police credentials displayed to attempt to stop the individual who exited the truck. | sHowever, the young black male fled and successfully evaded the NOPD officers. While fleeing from the NOPD officers, the black male dropped a clear plastic bag containing vegetable matter. The vegetable matter later tested positive for marijuana.

Detective Roccaforte stated on cross-examination that he did not observe a hand-to-hand transaction between Mr. Howard and the second suspect, but again stated that the mannerisms he observed, as well as the short time frame of the exchange was “very, very consistent with a drug dealer making drops,” and was “the reason for the investigation on the individual in the park.”

Detective Roccaforte testified that because the young black male had escaped and there were several people in the park that observed the subject run from the officers, he became concerned that the investigation could be jeopardized. However, Detective Roccaforte stated that he did not observe the individual use his cell phone.

Mr. Howard returned to the neighborhood near the South Salcedo Street residence and began circling the block.6 When Mr.

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Related

State v. Rapp
161 So. 3d 103 (Louisiana Court of Appeal, 2015)
State v. Fields
151 So. 3d 756 (Louisiana Court of Appeal, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
120 So. 3d 831, 2013 WL 3378816, 2013 La. App. LEXIS 1390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-howard-lactapp-2013.