State v. Kinard

105 So. 3d 974, 12 La.App. 5 Cir. 446, 2012 WL 5934811, 2012 La. App. LEXIS 1526
CourtLouisiana Court of Appeal
DecidedNovember 27, 2012
DocketNo. 12-KA-446
StatusPublished
Cited by7 cases

This text of 105 So. 3d 974 (State v. Kinard) 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. Kinard, 105 So. 3d 974, 12 La.App. 5 Cir. 446, 2012 WL 5934811, 2012 La. App. LEXIS 1526 (La. Ct. App. 2012).

Opinion

MARC E. JOHNSON, Judge.

I ¡¿Defendant, Enoch Kinard, appeals the trial court’s denial of his motion to suppress under State v. Crosby, 338 So.2d 584 (La.1976). For the reasons that follow, we affirm.

Defendant was initially charged in a bill of information on May 19, 2011 with illegal possession of a stolen firearm in violation of La. R.S. 14:69.1, to which he pled not guilty. The State subsequently amended the bill of information to charge defendant with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. He was re-arraigned on August 17, 2011, and again pled not guilty. Meanwhile, prior to the amendment of the bill of information, defendant filed a motion to suppress the evidence. The trial court denied the motion after a hearing on October 19, 2011. Thereafter, on February 14, 2012, the State again amended the bill of information and charged defendant with attempted possession of a firearm by a convicted felon in violation of La. R.S. 14:27 and 14:95.1. When defendant was re-arraigned on the amended charge, he pled guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and State v. Crosby, supra. In accordance with a plea agreement, the trial court sentenced defendant to seven years with the Department of Corrections.

Defendant filed this appeal seeking review of the trial court’s denial of his motion to suppress. The record shows that defendant’s guilty plea was accepted pursuant to Crosby, which allows appellate review if, at the time the plea is entered, defendant expressly reserved his right to appeal a specific adverse ruling in the case. Here, defendant failed to specify which pre-trial ruling he desired to reserve for appeal.

A defendant’s failure to specify which pre-trial ruling he desires to reserve for appeal as part of a guilty plea entered pursuant to Crosby limits the scope of appellate review, but it does not preclude review altogether. State v. Joseph, 03-315 (La.5/16/03), 847 So.2d 1196 (per curiam). Absent specification, the appellate court should presume the Crosby reservation preserves review of those evidentiary rulings that “go to the heart of the prosecution’s case,” such as the denial of a motion to suppress, and not rulings that may affect the conduct of the trial but do not substantially relate to guilt. Id., 847 So.2d at 1196-97. Thus, we find the denial of defendant’s motion to suppress evidence is renewable on appeal.

Defendant argues the trial court erred in denying his motion to suppress the evidence because the firearm was illegally seized from his vehicle. He contends there was no reasonable suspicion for the stop and there was no probable cause to [978]*978arrest him. Thus, he contends the firearm should be suppressed as “fruit of the poisonous tree.”

At the suppression hearing, Deputy Keith Carroll, with the St. John Sheriffs Office Criminal Patrol, testified he was patrolling East Thirteenth Street in Reserve, which is the “Reserve Projects,” around midnight on March 21, 2011 |4when he observed a vehicle parked southbound in the northbound lane obstructing traffic. He explained the vehicle was parked in the middle of the small street in front of an empty parking lot.

Deputy Carroll, who was traveling northbound, stopped and exited his vehicle. He approached the parked vehicle and asked defendant to step out of the car. When defendant opened the door, a gun fell out of the vehicle. Deputy Carroll explained that the butt of the gun fell out of the car on the side of the seat, but the gun did not hit the ground. Deputy Carroll testified the area was not well lit and there was a lot of crime going on in the area. Upon seeing the gun, Deputy Carroll placed defendant in handcuffs and detained him in front of the vehicle. He then retrieved the gun and cleared it to make it safe. Deputy Carroll ran the serial number of the gun through the NCIC and learned the gun was stolen. Thereafter, he placed defendant under arrest.

Deputy Carroll was the sole witness at the suppression hearing. The trial court took the matter under advisement and subsequently denied the motion to suppress.

In a hearing on a motion to suppress evidence seized without a warrant, the State bears the burden of establishing the admissibility of evidence. La.C.Cr.P. art. 703(D). The trial court’s denial of a motion to suppress is afforded great weight and its ruling will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Morton, 08-164 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, 655.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Leonard, 06-361 (La.App. 5 Cir. 10/31/06), 945 So.2d 764, 766. Warrant-less searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. Id.

The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by La.C.Cr.P. art. 215.1, as well as by state and federal jurisprudence. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred. State v. Waters, 00-356, (La.3/12/01), 780 So.2d 1053, 1056, citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). The standard is purely objective and does not take into consideration the subjective beliefs or expectations of the detaining officer. Id. “When an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable, regardless of the officer’s subjective motivation.” State v. Hunt, 09-1589 (La.12/1/09), 25 So.3d 746, 753.

In this case, the deputy observed defendant’s vehicle parked in the middle of [979]*979the street and explained that he would have had to go around the vehicle to continue driving on that street. He testified he stopped to investigate because the vehicle was obstructing traffic. Obstructing traffic is prohibited under La. R.S. 14:100.1;1 thus, Deputy Carroll had probable cause to believe defendant had | (¡committed a traffic violation, which justified the investigatory stop. The fact the deputy did not issue a traffic citation is irrelevant to the constitutionality of the stop. State v. Martin, 11-160 (La.App. 5 Cir. 12/28/11), 83 So.3d 230, 238.2

Once an officer has lawfully stopped a vehicle for a traffic violation, he is authorized to order the driver out of the vehicle pending completion of the stop. State v. Smith, 07-815 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, 825, unit denied, 08-927 (La.11/14/08), 996 So.2d 1088. Thus, Deputy Carroll had the authority to order defendant to exit the vehicle.

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Cite This Page — Counsel Stack

Bluebook (online)
105 So. 3d 974, 12 La.App. 5 Cir. 446, 2012 WL 5934811, 2012 La. App. LEXIS 1526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kinard-lactapp-2012.