State v. Jones

526 So. 2d 1374, 1988 WL 49490
Louisiana Court of Appeal·Decided May 17, 1988·No. KA 87 1597·Published·Cited by 4 cases

Opinion

526 So.2d 1374 (1988)

STATE of Louisiana
v.
Eugene JONES.

No. KA 87 1597.

Court of Appeal of Louisiana, First Circuit.

May 17, 1988.

*1375 Bryan Bush, Dist. Atty., Baton Rouge by Robert Piedrahita, Asst. Dist. Atty., for plaintiff/appellee.

Walton J. Barnes, II, Zachary, for defendant/appellant.

Before LOTTINGER, EDWARDS and ALFORD, JJ.

LOTTINGER, Judge.

Eugene Jones was charged by bill of information with possession of cocaine, a violation of La.R.S. 40:964 and 40:967. A jury returned the responsive verdict of guilty of attempted possession of cocaine. He was sentenced to serve two and one-half years at hard labor. The trial court suspended the sentence and placed defendant on active, supervised probation for five years, with several special conditions. He appealed, urging eight assignments of error, as follows:

1. Physical evidence seized during a search of his hotel room should have been suppressed.

2. The trial court erred by restricting his voir dire examination of a prospective juror.

3. The trial court erred by requiring that defendant exercise his peremptory challenges at the same time as the state.

4. The court erred by failing to excuse a potential juror.

5. The trial court erred by overruling a defense objection to the relevance and admissibility of evidence by a state witness.

6. The trial court erred by permitting the state to introduce drug paraphernalia.

7. The trial court erred by denying defendant's motion for a mistrial.

8. The trial court erred by instructing the jurors on the legal concept of dominion or control.

FACTS

Defendant was arrested at the Regal 8 Motel in Baton Rouge, Louisiana. The arrest resulted from information provided by employees of the motel, who notified the Baton Rouge City Police that one of the motel guests was behaving in an unusual manner. The manager, Patricia Lynn Fazio Soule, discussed defendant's behavior with Officer Stanley James Bihm of the Baton Rouge Police Department when he stopped by the motel while on routine patrol. Ms. Soule was concerned because defendant, who had checked out of the motel the previous day, became irate when the management told him he would not be allowed to occupy the same room when he checked back into the motel. Ms. Soule was also concerned because the switchboard operator had reported that an extraordinarily large number of telephone calls had been placed from the room defendant occupied on his previous stay, many of which resulted in toll charges to the motel. According to Ms. Soule, the night operator had also reported that, during his previous stay, defendant received a substantially larger than average number of incoming calls. The operator noticed the number of calls because many of them occurred during the late night hours when the switchboard was not busy. By the time Ms. Soule talked to Officer Bihm, defendant had placed a large number of calls from his second room; in fact, the management had twice requested defendant to pay a deposit in order to maintain his telephone service.

*1376 Officer Bihm testified that he had previously been involved in a narcotics investigation concerning defendant's brother, and he recognized defendant's name because of that investigation. Officer Bihm called Officer David Whatley, also of the Baton Rouge Police Department, and requested assistance at the motel. Officer Whatley and Officer John Boscoe of the narcotics division of the Baton Rouge Police Department joined Officer Bihm at the motel. Officer Boscoe also recognized defendant's name in connection with a previous narcotics investigation. After talking to several motel employees, the three police officers decided to watch defendant's activities for a short time.

Officers Whatley and Boscoe rented a room at the motel across from the room defendant occupied. Over the next several hours, they watched defendant admit several other persons to the room. From time to time, defendant opened the door and used it to fan the room. On two different occasions, the officers watched defendant throw paper or plastic bags into a large outdoor trash can. The officers recovered the items thrown into the container by defendant, which were the only objects in the receptacle. Officer Whatley discovered a white, powdery residue in a plastic bag deposited by defendant. He performed two field tests on this substance, one designed to reveal traces of amphetamines and the other to reveal traces of cocaine. The substance tested positive for cocaine.

After obtaining the test results, Officer Whatley left the motel and secured a warrant to search the room while Officer Boscoe continued the surveillance. A search conducted after Officer Whatley returned with the warrant revealed traces of suspected cocaine in the room, as well as drug paraphernalia and other items apparently being used in the preparation of drugs for consumption and packaging. Defendant was arrested for possession with attempt to distribute cocaine. He was later charged with simple possession of cocaine.

ADMISSION OF PHYSICAL EVIDENCE

By assignment of error number one, defendant complains that the court erred by permitting the state to introduce the items seized during the search of his motel room. He contends that the motel employees violated his right to privacy by monitoring the number of telephone calls made from his room and by reporting his activities to the police. He submits, therefore, that the evidence uncovered in the search should have been suppressed because it was discovered as the result of an unconstitutional invasion of privacy.

Defendant filed a pre-trial motion to suppress this evidence in which he urged the same grounds. The trial court granted the motion, ruling that the interception of the telephone calls was an invasion of privacy proscribed by La. Const. Art. 1, Sec. 5. Thereafter, the State filed an application for supervisory writs with this Court, seeking review of the trial court's ruling. We granted the State's application, finding that the actions of the motel employees did not constitute a search. Citing State v. Gentry, 462 So.2d 624 (La.1985), we further noted that the rule requiring the suppression of evidence illegally seized was intended to restrain governmental authorities, not private individuals.

Although a pretrial determination of the admissibility of evidence does not absolutely preclude a different decision on appeal, judicial efficiency demands that this Court accord great deference to its pretrial decisions unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result. See State v. Johnson, 438 So.2d 1091, 1104-1105 (La.1983). See also State v. Humphrey, 412 So.2d 507, 523, on rehearing, (La.1982).

On appeal, defendant essentially admits that the seizure of evidence by private individuals is not necessarily unconstitutional. He contends, however, that an invasion of privacy by an individual should be reviewed under a stricter standard than that by which a search or seizure is evaluated.

La. Const. Art. 1, Sec. 5, provides as follows:

*1377 Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Jones, 526 So. 2d 1374, 1988 WL 49490 (La. Ct. App. 1988).

526 So. 2d 1374 (State v. Jones) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Lockhart
629 So. 2d 1195 (Louisiana Court of Appeal, 1993)
State v. Hawkins
572 So. 2d 108 (Louisiana Court of Appeal, 1990)
State v. Young
569 So. 2d 570 (Louisiana Court of Appeal, 1990)
State v. Taylor
553 So. 2d 873 (Louisiana Court of Appeal, 1989)