State v. Irby

632 So. 2d 801, 1994 WL 30315
Louisiana Court of Appeal·Decided February 4, 1994·No. 93-K-2220·Published·Cited by 10 cases

Opinion

632 So.2d 801 (1994)

STATE of Louisiana
v.
Michael IRBY.

No. 93-K-2220.

Court of Appeal of Louisiana, Fourth Circuit.

February 4, 1994.

*802 Harry F. Connick, Dist. Atty., Charmagne Padua, Asst. Dist. Atty., New Orleans, for relator.

Bruce Whittaker, New Orleans, for respondent.

Before BARRY, ARMSTRONG and JONES, JJ.

ON APPLICATION FOR REHEARING

ARMSTRONG, Judge.

On motion of the State and of this court ex proprio motu, we grant rehearing to correct several clerical errors contained in our earlier decision.

On December 9, 1991, defendant Michael Irby was charged with possession of more than 400 grams of cocaine. He was at large for a time, and it was not until August 20, 1993, that he was arraigned and pled not guilty. His motion to suppress the evidence, heard September 21st, was denied in part and granted in part on October 22nd. The State now comes before this court seeking relief from the partial granting of this motion.[1] We grant the State's application for supervisory writs to consider the correctness of that part of the trial court judgment granting defendant's motion to suppress the evidence.

On June 26, 1991, N.O.P.D. narcotics officers received a tip that the defendant, Michael Irby, was distributing crack cocaine in the area of Plainsfield Drive in eastern New Orleans. The tip indicated that Irby had just moved into the area and that he was distributing the drugs from his cars, a late model Porsche and a Chevy Spectrum. Around that time, they received another tip listing Irby's address as 2769 Jasmine Street and indicating that he stored the drugs at an apartment on Plainsfield Drive and sold the drugs from his sister's apartment at 4000 Hamburg Street, Apartment F, in the St. Bernard Housing Project. The tip also noted that Irby used a Peugeot which was registered in his sister's name. The officers attempted to confirm this information but were unable to do so at that time.

On September 27, 1991, the officers received a telephone complaint that Irby was selling cocaine from a residence in the St. Bernard Project. The tip indicated that Irby kept the drugs at his house on Jasmine Street and that he used a white Suzuki jeep to transport the cocaine. On October 10th narcotics officers set up a surveillance of the Jasmine Street residence and eventually observed the defendant pull up to the house in a white Suzuki and park in the driveway. From their vantage point, the officers were unable to see the vehicle once it had pulled back into the driveway. After waiting a time and not seeing the defendant emerge toward the front of the residence, the officers left their position and drove by the driveway. As they passed by, they looked down the driveway and saw the defendant entering a shed which was located in the rear of the house. They drove back to their original position, and a few minutes later they saw the defendant leave in the Suzuki. They followed him *803 but lost him once he entered the St. Bernard Housing Project.

On October 11th, they again set up a surveillance of the Jasmine Street residence. Soon thereafter, they saw the defendant drive up in the Suzuki, exit the vehicle, and go into the shed at the rear of the property. Remaining there only a few minutes, the defendant left the shed carrying a gray cloth bag. He reentered the Suzuki and left the house. The officers again followed him to the St. Bernard Housing Project, where he pulled into a driveway in the 3900 block of Duplessis Street. He left the Suzuki, carrying the gray bag, and entered an apartment at 3939 Duplessis. He remained there a short time, and when he reappeared he was not carrying the bag. He was stopped as he was reentering the Suzuki, advised of his rights, and advised that he was under investigation for narcotics violations. In response to the officers' questions, the defendant denied that he had entered the apartment and denied knowing who lived there.

The officers took Irby back to the apartment from which he had just emerged. They knocked on the door, which was opened by Kim Miles. In response to the officers' question, she identified the defendant as her cousin. The officers advised her of her rights, advised her that she was also under investigation for narcotics activity, and asked her if she would consent to a search of her apartment. The officers told her that if she did not consent, they would hold her there until they had obtained a search warrant. Ms. Miles told the officers she knew nothing about any drugs and she consented to a search of the apartment. She indicated that the defendant had gone into a bedroom while he was visiting her. The officers entered that bedroom and found the gray cloth bag hidden in a blanket in the bedroom. They opened the bag and found it contained approximately fourteen or fifteen grams of crack cocaine. Approximately $120.00 and a gun were also seized. The defendant was placed under arrest, and he told Ms. Miles to "take the rap" for the cocaine and he would take care of her.

The defendant told the officers that he lived at the Jasmine Street residence with his mother. The officers decided to apply for a warrant to search that residence. As they were taking Irby to their car, he suddenly called out to his mother, who had appeared on the scene, to call Jasmine Street because the officers were going there. Fearing that evidence might be destroyed before a warrant could be obtained, the officers went directly to the Jasmine Street residence. Once there the officers knocked on the door, which was opened by the defendant's brother. The brother refused to allow the officers to enter the house. One officer described the brother as violent and acting irrationally. The officers decided to obtain a warrant to search the house, and a few of them left to prepare it. The defendant's mother soon drove up in the Suzuki, which had been left in the project. When told that a warrant was being prepared, she agreed to allow the officers to search the house.

The defendant was taken into the house and left with one officer while the other officers searched the house. Finding nothing in the house, the officers went to the shed, which was locked. Finding no key in the house or on the defendant, the officers broke into the shed and found a scale and an old lunch box hidden in the rafters which contained approximately twenty-eight ounces of cocaine. When the defendant realized the officers were searching the shed, he ran through the house and exited the back door, but he was captured in the back yard. Prior to the time the officers broke into the shed the defendant's mother indicated that the shed did not belong to them but instead belonged to the neighbors. The neighbors, however, told the officers that the shed belonged to the defendant's house. After the defendant had been taken to police headquarters, he told the officers that he obtained his drugs from two Cubans who lived across the river.

After hearing this evidence, the trial court denied the motion to suppress the evidence seized from Duplessis Street but suppressed the evidence seized from the shed on Jasmine Street.

The State contends that the trial court erred by suppressing the evidence seized from the shed because the defendant's *804 mother had consented to a search of it. It admits that the mother at one point stated that she could not consent to the search of the shed because it belonged to her neighbors, but it argues that this statement was made after the shed had already been searched. In addition, it argues that in any event the consent to search her h

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State v. Irby, 632 So. 2d 801, 1994 WL 30315 (La. Ct. App. 1994).

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