State v. Lee

208 So. 3d 492, 2016 La. App. Unpub. LEXIS 387
CourtLouisiana Court of Appeal
DecidedOctober 12, 2016
DocketNo. 50,795-KA
StatusPublished

This text of 208 So. 3d 492 (State v. Lee) 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. Lee, 208 So. 3d 492, 2016 La. App. Unpub. LEXIS 387 (La. Ct. App. 2016).

Opinion

CARAWAY, J.

1, After a 12-person jury trial, defendant was convicted of possession with intent to distribute marijuana in violation of La. R.S. 40:966(A)(1). Because the defendant was adjudicated a fourth felony offender, the court sentenced him to a term of 40 years’ imprisonment. Defendant now appeals, urging 8 assignments of error. Because we find that defendant’s assignments of error are without merit, we affirm defendant’s conviction and sentence.

Facts

On June 24, 2014, Shreveport Police Department (“SPD”) Corporal Javon Tyler was working security in the parking lot at Stoner Vista Apartments in Shreveport when he observed two men inside a parked Ford Expedition. With the windows down, Cpl. Tyler saw the driver of the vehicle, whom he later identified as defendant Andre Lee, make a “sudden move” which caught Cpl. Tyler’s attention. As Cpl. Tyler approached the vehicle to speak to the men, he observed a set of digital scales resting on the vehicle’s center console. He then saw what he believed to be marijuana on the scale and some baggies next to it. Cpl. Tyler then ordered Lee out of the vehicle and instructed him to keep his hands where Cpl. Tyler could see them.

During this interaction, the passenger of the vehicle quickly exited and fled the scene. As Cpl. Tyler placed Lee into custody, he flagged down a passing SPD narcotics unit for assistance. When the extra officers had arrived, Cpl. Tyler retrieved his patrol car, positioned it toward the scene, and turned on the video camera to record the remainder of the encounter.

|2The video footage, which was subsequently played during trial, shows Cpl. Tyler removing clear bags of green, leafy material and placing them on the hood of the patrol car. One of the large bags contained three smaller bags, each of which contained the same green, leafy material. Cpl. Tyler testified that the bags were on the driver side of the scale and that the scale’s digital display screen was also facing the driver side of the vehicle. Randall Robillard of the North Louisiana Crime Lab testified that the bagged material, weighing over 300 grams in the aggregate, tested positive for marijuana. Additionally, Cpl. Tyler recovered approximately $237 from the scene.

Caddo Parish Sheriff’s Office Lieutenant Carl Towney testified as an expert in the field of possession with intent to distribute. He examined the entirety of the evidence obtained, including the scales and the bags and concluded that the substantial quantity of marijuana, coupled with the scales and cash present at the scene, indicated that the material was intended for sale (possession with intent) rather than for personal use.

The case was tried before a jury on July 7, 2015. Despite repeated warnings and counseling to the contrary, Lee chose to represent himself as a pro se defendant. Ultimately, the jury convicted Lee as charged. The State then filed a habitual offender bill of information charging Lee as a fourth felony offender on July 16, [496]*4962015, with a hearing set for August 26 on the matter. On August 26, Lee was adjudicated a fourth felony offender and sentenced to serve 40 years’ imprisonment. On the same day, the court denied each of Lee’s three post-verdict motions: a “motion for relief from judgment,” a “motion in arrest of judgment,” and “a motion to dismiss.” IsThe following day, Lee filed a motion for a new trial and a “demand for dismissal,” both of which the court denied. Lee, continuing to represent himself, now appeals.

Discussion

The defendant has raised 8 assignment of errors including an allegation that his arrest was not supported by probable cause. Accordingly, we address each assignment in turn.

Assignment of Error No. 1. Arresting officer lacked probable cause to arrest appellant because he failed to perform a field test on the evidence. Therefore he arrested appellant on mere suspicion in violation of the IV Amendment.

In his first assignment of error, appellant contends that he was arrested without probable cause.1 Specifically, he argues that the arresting officer lacked probable cause to arrest him because the officer did not to perform a routine field test to establish that the evidence seized was in fact marijuana, the failure of which created only a mere suspicion and not probable cause.

The right of every person to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution. A search and seizure conducted without a warrant based on probable cause is unreasonable unless the war-rantless search can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 02-0333 (La. 4/9/03), 842 So.2d 330; State v. Ledford, 40,318 (La.App. 2 Cir. 10/28/05), 914 So.2d 1168.

The plain view doctrine is an exception to the warrant requirement. The plain view exception renders a warrantless search reasonable: (1) if the police officer is lawfully in the place from which he views the object; (2) where the object’s incriminating character is immediately apparent; and (3) the officer has a lawful right of access to the object. State v. Gipson, 45,121 (La.App. 2 Cir. 4/14/10), 34 So.3d 1090, writ denied, 10-1019 (La. 11/24/10), 50 So.3d 827. The “plain view” exception does not require a police officer to be certain that the object in plain view is contraband; it simply requires that the officer have probable cause to believe the item in question is either evidence and/or contraband. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). One common category of contraband, marijua[497]*497na, is commonly known to be a green vegetable matter and an officer can identify it as an illegal substance from his experience. State v. Boyd, 349 So.2d 1256 (La. 1977).

Probable cause to arrest exists when the facts and circumstances known to the arresting officer,- and of which he has reasonable and trustworthy information, are sufficient to justify a man of ordinary causation in the belief that the accused has committed an offense. State v. Surtain, 09-1835 (La. 3/16/10), 31 So.3d 1037; State v. Parker, 06-0053 (La. 6/16/06), 931 So.2d 353. Probable cause is determined by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer from which he might draw conclusions warranted by his training and experience. State v. Johnson, 422 So.2d 1125 (La. 1982); State v. Boyd, 349 So.2d 1256 (La. 1977). While mere suspicion is insufficient to justify an arrest, a police officer need not have sufficient proof to convict in order to arrest. State v. Wells, 08-2262 (La. 7/6/10), 45 So.3d 577 (citing State v. Randolph, 337 So.2d 498, 499 (La. 1976)).

Additionally, mere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention. State v. Martin, 11-0082 (La. 10/25/11), 79 So.3d 951; State v. Britton, 93-1990 (La. 1/27/94), 633 So.2d 1208 (noting that police have the same right as any citizen to approach an individual in public and to engage in conversation under circumstances that do not signal official detention).

In this case, Cpl.

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Bluebook (online)
208 So. 3d 492, 2016 La. App. Unpub. LEXIS 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lee-lactapp-2016.