State v. Melbert

649 So. 2d 740, 1994 WL 668043
CourtLouisiana Court of Appeal
DecidedNovember 30, 1994
DocketCR-140
StatusPublished
Cited by10 cases

This text of 649 So. 2d 740 (State v. Melbert) 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. Melbert, 649 So. 2d 740, 1994 WL 668043 (La. Ct. App. 1994).

Opinion

649 So.2d 740 (1994)

STATE of Louisiana, Appellee,
v.
Victor MELBERT, Defendant-Appellant.

No. CR-140.

Court of Appeal of Louisiana, Third Circuit.

November 30, 1994.

*741 Douglas L. Hebert Jr., Kinder, for State.

Thomas James Davis, Oakdale, for Victor Melbert.

Before DOUCET, SAUNDERS and WOODARD, JJ.

SAUNDERS, Judge.

The state charged defendant-appellant, Victor L. Melbert (hereafter MELBERT), by bill of information for possession with intent to distribute a controlled dangerous substance, Schedule II, cocaine, in violation of Louisiana Revised Statutes 40:967(A)(1). After a trial, the jury returned a verdict of guilty as charged. The trial court sentenced MELBERT to four and one-half (4½) years at hard labor.

The defendant appeals his conviction contending that the trial court erred when it failed to suppress evidence seized without a search warrant and failed to rule on defendant's pretrial motion to suppress his arrest.

ERRORS PATENT

Louisiana Code of Criminal Procedure article 930.8 provides that at the time of sentencing the trial court shall inform the defendant of the prescriptive period for post-conviction relief. The record shows the trial court did not so inform the defendant. This defect has no bearing on whether the sentence is excessive and this is not grounds to reverse the sentence or remand the case for resentencing. La.Code Crim.P. art. 921. The three year prescriptive period does not begin to run until the judgment is final under Articles 914 or 922, so prescription is not yet running. The purpose of the notice of Article 930.8(C) is to inform the defendant of the prescriptive period in advance. Consequently, we order the trial court to inform the defendant of the provisions of Article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that the defendant received the notice in the record of the proceedings. See State v. Fontenot, 616 So.2d 1353 (La.App. 3d Cir.), writ denied, 623 So.2d 1334 (La.1993).

Facts

On October 11, 1992, Deputy Jason Artis received a tip from a reliable confidential informant that the defendant, MELBERT, trafficked in cocaine and possessed a large amount of it at his residence. Information provided by that confidential informant had proven worthwhile in the past and had led to other unspecified arrests and convictions. Deputy Artis contacted his supervisor, Deputy Grant Willis, and provided him with the information. They attempted to obtain a search warrant for the home of Bobbie and Britt Wilson in which MELBERT resided, but due to a judges conference in New Orleans, the deputies were unable to locate their local judge or the neighboring judges in the Thirteenth Judicial District.

*742 Deputy Willis suggested that Deputy Artis approach the owners of the home directly and request their permission to search the home. At approximately 7:00 p.m. that evening Deputy Artis approached Bobbie Wilson at her place of employment and requested her written permission to search her house. Deputy Artis reviewed with Ms. Wilson the permission to search form and also provided her with the reason why they wanted to search the home. Ms. Wilson signed the form and gave her permission for the search of her home. The deputies placed the home under surveillance and awaited the return of the suspect, MELBERT, before conducting the search. At approximately 11:45 p.m. MELBERT and his girlfriend, Samantha Wilson, the daughter of Bobbie and Britt Wilson, returned home. Approximately fifteen (15) minutes after they entered the home, the deputies entered the home. They first approached Bobbie Wilson and asked her again if she still consented to the search of her home. She acknowledged her signature on the permission form that she signed earlier in that day and again granted them permission to search her home. She identified the rooms of her home and then the deputies began their search.

Deputies entered the bedroom in which MELBERT stayed and searched a brown boot bag located on the floor at the foot of the bed. Inside the bag, deputies located a large ziplock bag which contained three (3) other smaller ziplock baggies of what they believed was crack cocaine. After seizing the evidence, deputies placed MELBERT under arrest. The search of the room continued and deputies located two stolen watches, additional narcotics, and approximately $800.00 in cash stuffed in socks in a dresser drawer.

The state charged MELBERT for possession with intent to distribute crack cocaine. After a trial was held on February 24, 1994, the jury returned a verdict of guilty as charged. Subsequently, the trial court sentenced MELBERT to four and one-half (4½) years at hard labor.

Assignments of Error Nos. 1 and 2

In assignments of error numbers one and two, MELBERT contends that the trial court erred in denying his motion to suppress evidence allegedly seized from an invalid consensual search.

Generally, the constitutions of both the United States and Louisiana prohibit unreasonable searches and seizures, including seizures of evidence from searches made by law enforcement officers without a warrant. The courts, however, recognize consent to search as an exception to the general rule. Consent to search may be given by one who possesses common authority or sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Bodley, 394 So.2d 584 (La. 1981).

In United States v. Matlock, 415 U.S. at 171, fn. 7, 94 S.Ct. at 993, fn. 7, the court explained:

"7. Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (night hotel clerk could not validly consent to search of customer's room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched."

This court recognizes, however, that this ability to consent to a search of an area over which one has joint dominion is not unlimited. In State v. Evins, 626 So.2d 480, 495 (La.App. 3d Cir.1993), this court quoting from State v. Cover, 450 So.2d 741, 746 (La. App. 5th Cir.), writ denied, 456 So.2d 166 (La.1984), stated that:

*743 "An exception to this general rule occurs when there are within a residence areas or zones for the exclusive use of one tenant or the other. In such a situation, there is no `common authority' which would justify a search based on consent from the non-occupying party.

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Cite This Page — Counsel Stack

Bluebook (online)
649 So. 2d 740, 1994 WL 668043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-melbert-lactapp-1994.