State v. Merchant

490 So. 2d 336
CourtLouisiana Court of Appeal
DecidedMay 28, 1986
DocketKA 85 1222
StatusPublished
Cited by25 cases

This text of 490 So. 2d 336 (State v. Merchant) 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. Merchant, 490 So. 2d 336 (La. Ct. App. 1986).

Opinion

490 So.2d 336 (1986)

STATE of Louisiana
v.
Eric MERCHANT and Robert Schaefer.

No. KA 85 1222.

Court of Appeal of Louisiana, First Circuit.

May 28, 1986.
Rehearing Denied July 15, 1986.

*337 Walter Reed, Dist. Atty., Franklinton, for plaintiff-appellee State of La.

H.R. Alexander, Bogalusa, for defendant-appellant Eric T. Merchant and Robert W. Schaefer.

Before GROVER L. COVINGTON, C.J., and WATKINS and SHORTESS, JJ.

GROVER L. COVINGTON, Chief Judge.

Eric Merchant and Robert Schaefer were charged by a single bill of information with possession of one hundred pounds or more of marijuana in violation of LSA-R.S. 40:964 and 966(E)(1). Defendants pled not *338 guilty and filed a motion to suppress the seized contraband. After denial of the motion to suppress, defendants waived trial by jury and were tried by a judge. Defendants were convicted as charged. Merchant was sentenced to a term of imprisonment at hard labor for five years without benefit of parole, probation, or suspension of sentence and ordered to pay a fine of $25,000.00 plus costs. Schaefer was sentenced to a term of imprisonment at hard labor for ten years without benefit of parole, probation or suspension of sentence and ordered to pay a fine of $25,000.00 plus costs.

From these convictions, Merchant and Schaefer appeal, urging six assignments of error:

(1) The trial court erred in denying defendants' motion to suppress because the officer who arrested defendants was without authority to make an arrest outside of his territorial jurisdiction.
(2) The trial court erred in denying defendants' motion to suppress because the detention and warrantless arrest of defendants and the seizure of their airplane was without probable cause.
(3) The trial court erred in denying defendants' motion to suppress because the general search warrant obtained was defective.
(4) The trial court erred in sentencing defendants pursuant to LSA-R.S. 40:966(F)(2) because that provision authorizes an unconstitutional violation of defendants' rights against self-incrimination.
(5) The trial court erred by sentencing Robert Schaefer to a term of imprisonment which was double in length to the term imposed against his co-defendant, Eric Merchant.
(6) The trial court erred by sentencing Robert Schaefer to a ten year term of imprisonment without benefit of parole, probation, or suspension of sentence as such term is illegally excessive under the provisions of LSA-R.S. 40:966(E)(1).

At approximately 9:15 p.m. on October 4, 1984, Charles Brumfield of the Franklinton Police Department observed a small airplane flying at an extremely low altitude. The aircraft, with its landing lights turned on, appeared to be headed in the direction of the Franklinton Airport. Officer Brumfield's suspicions were aroused by his observations for he had never before seen a plane land at the Franklinton Airport at that time of night. Accordingly, he proceeded to the airport to investigate.

Arriving at the airport first, Officer Brumfield waited for the plane to land. After the aircraft taxied to a stop near some fuel pumps, Officer Brumfield pulled his marked patrol car in front of the airplane, got out, and asked its two occupants, later identified as Robert Schaefer and Eric Merchant, for identification. Schaefer, the airplane's pilot, produced a Colorado automobile operator's license and the back portion of a pilot's license for identification. Although Schaefer maintained that he had arranged with airport personnel to buy fuel, none of the airport attendants on duty had a key to the fuel pumps or knew anything about Schaefer's intended purchase of fuel. When questioned about ownership of the plane, Schaefer said that he did not know who owned the aircraft. He remarked, "You know how it is, somebody drops you a few bucks, you don't ask questions, you just fly the plane and drop it off wherever they tell you." In addition, Schaefer described his travel itinerary as flying the plane to the "big airport" in New Orleans and leaving it.

Officer Brumfield's initial conversation with defendants served to intensify his suspicions that the small, twin engine aircraft was being used for illegal purposes. Capt. Jack Underwood of the Washington Parish Sheriff's Office was called to the airport to aid Brumfield's investigation. Capt. Underwood's efforts were also met by evasive and inconsistent responses. Schaefer acknowledged that he did not have a flight plan. Although Schaefer then maintained that the aircraft was owned by someone in California, he was unwilling to identify anyone who could verify his rightful possession of the plane.

*339 With the situation postured as an unsatisfactory stalemate, defendants accompanied Capt. Underwood to the sheriff's office. An application for search warrant was prepared by Capt. Underwood, approved by a neutral magistrate and executed by Capt. Underwood. Pursuant to the search warrant, two large bales of marijuana, composed of smaller packages wrapped with plastic tape, were recovered from the baggage compartment immediately behind the rear seats of the airplane. Stipulation at trial on the merits established the weight of each bale at 64.5 pounds.[1]

ASSIGNMENT OF ERROR NUMBER ONE:

By means of this assignment, defendants contend that their motion to suppress should have been granted because Officer Brumfield was without authority to stop or arrest them outside of his territorial jurisdiction.

At the hearing on the motion to suppress, a stipulation was entered into the record whereby the state acknowledged that the Franklinton Airport is not within the territorial limits of the City of Franklinton although the airport facility is owned and maintained by the City of Franklinton. The record also reveals that Officer Brumfield was on duty, located within his territorial jurisdiction, when he first observed defendants' aircraft. We find that the location of the stop is not of controlling significance in this case.

In State v. Bickham, 404 So.2d 929 (La.1981), the Louisiana Supreme Court construed La.C.Cr.P. art. 215.1 as authorizing an officer in close pursuit to leave the jurisdiction to make an investigatory stop, when, as herein, the officer initiated his pursuit for the purpose of stopping while within his jurisdiction. In addition, in the instant case, Capt. Underwood of the Washington Parish Sheriff's Office, operating within his territorial jurisdiction, arrived at the airport soon after Officer Brumfield's initial stop of defendants. More significantly, the Louisiana Supreme Court rejected defendant's contention in State v. Bickham that the remedy necessary for enforcement of the territorial jurisdiction rule is exclusion of reliable evidence produced as a result of arrests or stops initiated in good faith by an officer who began to act within his territorial limits.

For the foregoing reasons, this assignment of error is without merit.

ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE:

By means of assignment of error number two, defendants urge that Officer Brumfield lacked probable cause to arrest them. Accordingly, they maintain that all evidence received subsequent to and as a result of their illegal arrests is inadmissible and should have been suppressed by the trial court. In support of this contention, defendants maintain that they were placed under arrest immediately upon deplaning from their small aircraft.[2]

La.C.Cr.P. art.

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490 So. 2d 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-merchant-lactapp-1986.