State v. Montegut

471 So. 2d 286
CourtLouisiana Court of Appeal
DecidedJune 5, 1985
DocketKA-1687
StatusPublished
Cited by4 cases

This text of 471 So. 2d 286 (State v. Montegut) 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. Montegut, 471 So. 2d 286 (La. Ct. App. 1985).

Opinion

471 So.2d 286 (1985)

STATE of Louisiana
v.
Leonard MONTEGUT.

No. KA-1687.

Court of Appeal of Louisiana, Fourth Circuit.

June 5, 1985.

*288 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., for the State of La.

Patricia E. Black, Arthur L. Harris, Sr., New Orleans, for defendant-appellant.

Before CIACCIO and BYRNES, JJ., and PRESTON H. HUFFT, J. Pro Tempore.

BYRNES, Judge.

Leonard Montegut, defendant-appellant, was charged by indictment with possession of heroin with intent to distribute in violation of R.S. 40:966. He filed motions to disclose the informant, suppress a confession, and supress evidence, all of which were denied. Montegut was subsequently found guilty as charged and sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. His Motion for a New Trial was denied. This appeal followed.

FACTS

In November, 1982, The New Orleans Police Department received a tip from a reliable confidential informant that appellant, Leonard Montegut, was trafficking narcotics from his home at 2808 Dumaine Street. The Police began surveillance of this address on November 24, 1982, and observed the following series of events:

1). A black female exited appellant's apartment and drove a red Oldsmobile Cutlass, registered to appellant, to the intersection of Republic and Law Streets;
2). At the intersection the woman parked and was met by a white female, later identified as Sharon Freeman, driving a tan Volkswagon;
3). Ms. Freeman walked to the Cutlass, remained momentarily, returned to her car, and drove away;
4). One of the officers followed the Volkswagon to 1742 Frenchman Street while the other officer followed the Cutlass back to appellant's address.

At this time the surveillance ended.

On December 2, 1982, the officers received more information concerning appellant's narcotics transactions. At this point they initiated surveillance at both the Dumaine and Frenchman Street addresses. On this date the officers observed the following:

1). The officer at Dumaine Street observed Ms. Freeman drive past appellant's residence twice (the Cutlass was not there at the time);
2). Later that day appellant returned home in his Cutlass and made several short trips out;
3). On one occasion when appellant left his residence he got in the Cutlass and drove towards the downtown area;
4). At the same time the officer at Frenchman Street observed Ms. Freeman drive her Volkswagon towards the intersection of Claiborne and Ursuline Streets;
5). Finally, at approximately 8:00 p.m. appellant and Ms. Freeman met under the Claiborne overpass.

At this point the officers left their vehicles and observed appellant holding a small package wrapped in yellow tissue paper. When the officers announced themselves, appellant threw the tissue on the ground and began running towards his car. He was apprehended after a struggle. The tissue paper was recovered and found to contain nine bags of heroin. The officers advised appellant of his Miranda rights and placed him under arrest. Immediately thereafter, appellant told one of the arresting officers that he only deals heroin to adults and not children.

ASSIGNMENTS OF ERROR

Appellant originally specified ten assignments of error. However, he has only argued five in brief to this Court. Accordingly, the remaining assignments are deemed abandoned. State v. Joseph, 425 So.2d 1261 (La.1983).

*289 By the briefed assignments appellant contends that the trial court erred:

1). In denying his motion to suppress evidence seized pursuant to a search warrant;
2). In denying his motion to suppress the confession;
3). In denying his motion to disclose the confidential informant;
4). In qualifying Officer Robert McNeil as an expert in the use, effect, appearance, and method of distribution of heroin; and
5). By accepting a verdict which was contrary to the evidence.

MOTION TO SUPPRESS EVIDENCE

Subsequent to appellant's arrest, the investigating officers obtained a search warrant for his residence at 2808 Dumaine Street. Appellant contends that any evidence seized pursuant to that warrant should have been suppressed at trial. He argues that the search warrant was invalid because the police failed to establish probable cause for the warrant to issue.

The record shows that the state offered three exhibits some of which represent items seized from appellant at the time of arrest. The trial court admitted into evidence the nine packets of heroin seized at the scene of the arrest; $158.00 taken from appellant, also at the scene; which items were the product of a lawful search incident to arrest; and the crime lab report analyzing the nine packets which determined that the contents were heroin. There is no indication that any of the items seized pursuant to the search warrant were ever offered or admitted into evidence. Thus, the validity of the warrant is not an issue, and this assignment is without merit.

MOTION TO SUPPRESS CONFESSION

By this assignment, appellant contends that the trial court erred in denying his Motion to Suppress his Confession. He argues that because he was physically harassed before making the statement, it was not voluntary. He also argues that the state failed to show that he was properly advised of his Miranda rights.

To be free and voluntary, a confession must be given without "... the influence of fear, duress, intimidation, menaces, threats, inducements or promises." LSA-R.S. 15:451; State v. Taylor, 422 So.2d 109 at 116 (La.1982).

In the present case, appellant contends that he was beaten prior to making the statement that he only sold heroin to adults, not children. The record shows that after the arresting officers revealed their identity, appellant threw down a wad of yellow tissue paper and ran towards his car. When he reached his auto he removed a kitchen knife from it. One of the officers knocked the knife from appellant's hand and a struggle ensued. Appellant was finally subdued, advised of his rights, and arrested. Subsequently the following exchange took place between appellant and one of the arresting officers:

Appellant: Hey sister, why you want to let these people mess over your brother like this?
Officer: None of my brothers deal heroin.
Appellant: All I do is deal heroin to adults. At least I don't deal PCP or sets to kids. (See Tr. pg. 100)

All of the officers present at the scene testified that appellant was not beaten into confessing.

It is well settled that reasonable force may be used to effect a lawful arrest particularly where it is necessary to overcome the resistance of the suspect. C.Cr.P. Art. 220; See also Norrell v. City of Monroe, 375 So.2d 159 (La.App.2d Cir. 1979). The above facts clearly show that the force used by the arresting officers was reasonable and necessary to subdue an armed suspect. There is no evidence indicating that excessive force was used except for the testimony of Sharon Lackman a/k/a Sharon Freeman who stated that the officers beat appellant at the time of arrest.

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Related

State v. Montegut
618 So. 2d 883 (Louisiana Court of Appeal, 1993)
State v. Everett
530 So. 2d 615 (Louisiana Court of Appeal, 1988)
State v. Johnson
513 So. 2d 832 (Louisiana Court of Appeal, 1987)
State v. Franks
483 So. 2d 224 (Louisiana Court of Appeal, 1986)

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471 So. 2d 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-montegut-lactapp-1985.