State v. Lee

715 So. 2d 582, 1998 WL 315528
Louisiana Court of Appeal·Decided June 17, 1998·No. 97-1470·Published·Cited by 3 cases

Opinion

715 So.2d 582 (1998)

STATE of Louisiana, Plaintiff-Appellee,
v.
Marcus Mandrill LEE, Defendant-Appellant.

No. 97-1470.

Court of Appeal of Louisiana, Third Circuit.

June 17, 1998.

*583 Charles F. Wagner, District Attorney, for State.

J. Albert Ellis, John Michael Lawrence, New Orleans, for Marcus Mandrill Lee.

Before YELVERTON, GREMILLION and PICKETT, JJ.

GREMILLION, Judge.

Defendant, Marcus Mandrill Lee, was charged with possession of a controlled dangerous substance, Schedule I (marijuana), *584 with intent to distribute, in violation of La. R.S. 40:966(A)(1). After filing a Motion to Suppress, which was denied, he entered a conditional Crosby plea of guilty and was sentenced to five years with the Louisiana Department of Corrections, to run concurrent with any other sentence being served. Defendant now appeals the trial court's ruling denying the Motion to Suppress. For the following reasons, we affirm.

FACTS

Defendant was traveling on a Greyhound bus out of Shreveport which stopped in Alexandria at approximately 6:00 a.m. In Alexandria, Louisiana State Trooper Timothy Ledet, a seventeen-year veteran of the Louisiana State Police, met the bus with his narcotics detection dog. Trooper Ledet led his dog onto the bus to check the bus aisles for narcotics. The dog did not alert Trooper Ledet to any narcotics while on the bus. Next, he directed the dog to the cargo/baggage hold of the bus. The dog alerted on a bag which had a baggage tag with the name "Mike Jones" attached.

Upon checking with the bus driver for a matching ticket stub, the driver directed Trooper Ledet to Defendant who was carrying a baby. Trooper Ledet then approached Defendant and asked to see his ticket. Trooper Ledet noticed that Defendant appeared nervous. Defendant was unable to locate the ticket, and this seemed to cause him to become more nervous. When Trooper Ledet inquired further, Defendant stated that his name was "Marcus Lee;" that he was traveling from the Dallas area; and that his occupation was that of a locksmith. Trooper Ledet asked the other passengers if the identified baggage belonged to any of them. All passengers denied ownership. He then asked Defendant if he would mind stepping off the bus in order to discuss the matter further. Defendant voluntarily agreed and complied with the request.

Upon exiting the bus, Defendant was asked if the identified baggage was his, and he denied ownership as well. With the bag appearing abandoned, Trooper Ledet opened it and checked the contents. Upon examination, Trooper Ledet discovered three plastic and foil wrapped bundles of marijuana weighing approximately three and one-half pounds, a set of triple-beam scales, locksmith tools and literature, and infant clothing and food appropriate for the seven-month-old baby accompanying Defendant. Defendant was then arrested by Trooper Ledet.

DISCUSSION

In his only assignment of error, Defendant argues that the trial court erred in denying his Motion to Suppress because evidence was obtained by an unreasonable search and seizure. Defendant makes several arguments in support of his contention. Initially, he argues it was impermissible for Trooper Ledet to enter the bus terminal with a narcotics canine to perform a random drug sweep of the bus and luggage. We disagree.

In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the United States Supreme Court ruled that a "canine sniff" of the exterior of luggage is not a search.[1] Individuals have reasonable expectations of privacy in the contents of luggage, but the drug detection dog sniffs the air space on the exterior of the luggage and no one has an expectation of privacy in the ambient air space outside of the luggage. In Louisiana, this reasoning has been followed in State v. Meyers, 520 So.2d 842 (La.App. 3 Cir.1987); State v. Fikes, 616 *585 So.2d 789 (La.App. 2 Cir.1993); State v. Arrington, 556 So.2d 263 (La.App. 2 Cir.1990), and State v. Thompson, 543 So.2d 1077, (La. App. 2 Cir.), writ denied, 551 So.2d 1335 (La.1989).

Applying this reasoning to the present case, the sweep by the drug detection dog of the cargo/baggage hold of the bus, particularly the luggage, was not a search. Furthermore, several federal cases holding that a canine sniff is not a search also hold that there is no need for an individualized reasonable suspicion before the police may conduct a canine sniff. United States v. Seals, 987 F.2d 1102 (5th Cir.), cert. denied, 510 U.S. 853, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993) and United States v. Daniel, 982 F.2d 146 (5th Cir.1993). Reasonable suspicion and probable cause are necessary for searches or Terry stops but the canine sniff, alone, is neither a search nor a Terry stop.

In United States v. Graham, 982 F.2d 273 (8th Cir.1992) and United States v. Harvey, 961 F.2d 1361, (8th Cir.), cert. denied, 506 U.S. 883, 113 S.Ct. 238, 121 L.Ed.2d 173 (1992), the police conducted canine sniff sweeps of Greyhound buses temporarily stopped in the North Little Rock, Arkansas bus station in a manner similar to the procedure employed in the present case. After the dogs gave positive alerts to the presence of narcotics in certain pieces of luggage, the passengers returned to the bus where they were all questioned about the luggage, and the defendants identified the suspected luggage as theirs. Later searches of the luggage, pursuant to the passengers' consent or search warrant, revealed the presence of narcotics. In the present case, no warrant or consent was ever obtained. In both the Graham and Daniel cases, the courts upheld the seizure of the luggage finding that the canine sniffs were not a search and that the positive alert by the drug detection dogs was sufficient to give the police probable cause to believe that the luggage contained narcotics.

In the present case, the bus driver consented to allow Trooper Ledet to "work" the narcotics dog in the aisle and in the cargo/baggage hold of the bus. Thus, Trooper Ledet had the right to be where he was when the dog gave a positive alert on the baggage. Since the canine sniff was not a search, no Fourth Amendment right was implicated simply by the introduction of the narcotics dog to the baggage in the cargo/baggage hold. The Fourth Amendment only protects against "unreasonable searches and seizures." It is clear that people do not have a reasonable expectation of privacy in odors emanating from their luggage. Under the Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution, there has been no "unreasonable search and seizure" because the canine sniff, in this case, was not a search.

The State contends that law enforcement agents do not need even articulable suspicion to prompt a "sniff" by a narcotics-detection dog of packages which are placed in the charge of common carriers and not in the possession of individuals.

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State v. Lee, 715 So. 2d 582, 1998 WL 315528 (La. Ct. App. 1998).

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