State v. Moreau

918 So. 2d 598, 2005 WL 3579332
CourtLouisiana Court of Appeal
DecidedDecember 30, 2005
Docket05-544
StatusPublished
Cited by2 cases

This text of 918 So. 2d 598 (State v. Moreau) 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. Moreau, 918 So. 2d 598, 2005 WL 3579332 (La. Ct. App. 2005).

Opinion

918 So.2d 598 (2005)

STATE of Louisiana
v.
Michael K. MOREAU.

No. 05-544.

Court of Appeal of Louisiana, Third Circuit.

December 30, 2005.

*599 Honorable J. Phillip Haney, District Attorney, New Iberia, Jeffrey J. Trosclair, Assistant District Attorney, Franklin, Counsel for Appellee: State of Louisiana.

J. Kevin Stockstill, Lafayette, Counsel for Defendant/Appellant: Michael K. Moreau.

Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.

AMY, Judge.

The defendant was charged by bill of information with dogfighting, a violation of La.R.S. 14:102.5. The defendant filed a *600 motion to suppress, which the trial court denied. The defendant entered a plea of guilty to the charge, reserving his right to appeal the suppression issue. He was sentenced to one year at hard labor, with a one-thousand dollar fine. The defendant appeals, seeking review of the trial court's denial of his motion to suppress. For the following reasons, we affirm and remand with instructions.

Factual and Procedural Background

The record indicates that on September 28, 2003, the defendant's vehicle was pulled over by a police officer for impeding the flow of traffic. After Robert Kennison, the driver of the defendant's vehicle, and the defendant were arrested, Officer Lefleur saw an injured, bleeding dog on the backseat of the vehicle. Officer Lefleur then preceded to search the car, also finding a video camera and a videotape. Upon questioning Mr. Kennison, Officer Lefleur learned that he and the defendant had engaged in dogfighting.

The State charged the defendant by bill of information on December 2, 2003 with dogfighting in violation of La.R.S. 14:102.5. The defendant subsequently filed a motion to suppress, questioning the stop of the vehicle and the search conducted after the stop. On July 21, 2004, the trial court held a hearing on the defendant's motion to suppress, which was denied. The defendant later entered a plea of guilty to the charge, reserving his right to appeal the suppression issue. The defendant was sentenced to one year at hard labor, with a one-thousand dollar fine. The defendant now appeals, assigning the following as error:

1. The Trial Court erred by finding that the stop of [the defendant]'s vehicle was proper.
2. The Trial Court erred by finding that no search occurred because the bleeding dog was in "plain view[.]"
3. The Trial Court erred by finding that the search was incident to the arrest of the defendant.
4. The Trial Court erred by finding that Officer L[e]fleur had probable cause to search the vehicle accompanied with exigent circumstances.
5. The Trial Court erred by finding that the search was an "inventory search" of the vehicle.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find one error patent requiring correction.

The trial court orally informed the defendant of the prescriptive period for filing post-conviction relief at the time of the defendant's guilty plea. Louisiana Code of Criminal Procedure Article 930.8 provides the following regarding the appropriate time to advise the defendant of the prescriptive period for filing post-conviction relief:

C. At the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post-conviction relief either verbally or in writing. If a written waiver of rights form is used during the acceptance of a guilty plea, the notice required by this Paragraph may be included in the written waiver of rights.

Since the trial court notified the defendant verbally at the guilty plea proceeding, rather than in a written waiver of rights as is required if notification is given at the time of the plea rather than sentencing, this notice did not meet the requirements of La.Code Crim.P art. 930.8(C). Accordingly, *601 we remand with instructions to the trial court to send the defendant appropriate written notice of the prescriptive period of Article 930.8(C) within ten days of the rendition of the opinion and to file written proof that the defendant received the notice in the record of the proceedings. See State v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095.

Reasons for Ruling and Standard of Review

As all of the defendant's assignments relate to the motion to suppress and the trial court's reasons bear on each of these arguments, we initially set forth the trial court's findings and the applicable standard of review. The trial court stated:

Upon initiating the stop, I think he had probable cause to stop the vehicle based upon the suspicions he may have had of impeding traffic and/or some other traffic offense, DWI or otherwise. He pulled them over on Highway 103. Mr. Kennison exited the vehicle. He asked him for his driver's license. He could not produce a driver's license. At that point the officer had the pejorative[sic] to either issue a ticket to Mr. Kennison or arrest him. He, in fact, did arrest him at that time. Mr. Moreau exited the vehicle, started impeding the officer with why was he arresting the defendant. Mr. Moreau was also arrested for interference with the duties of a police officer.
Even if he had not arrested Mr. Moreau, I think Officer Lefleur would have had enough probable cause to go around the vehicle to determine if anything was in plain view within the vehicle. Before he even started an inventory search he said he could see the dog was in fact injured in some type of fashion. He approached Mr. Kennison and asked him was the dog injured and as a result of what. Mr. Kennison had been previously Mirandized, by Officer Lefleur's testimony, after he had been arrested. He made a statement that the dog was injured as a result of dog fighting. I think at that point Officer Lefleur, being a prudent police officer, whether it pursuant to an inventory or otherwise, had a right to go into the vehicle and seize evidence of the crime based upon the exigency of the circumstances and that the vehicle was very mobile at that time. If he had left the vehicle there, possibly some relatives or other people on behalf of Mr. Kennison and Mr. Moreau could have retrieved the vehicle and destroyed the evidence. Certainly I think Officer Lefleur acted accordingly and the Motion to Suppress is denied.

The appellate court looks at the totality of the evidence presented at the hearing for the motion to suppress when reviewing a trial court's denial of the motion. State v. Sherman, 03-1198 (La.App. 3 Cir. 3/2/05), 896 So.2d 1194. The appellate court should overturn the trial court's conclusions only if they are not supported by the evidence or there is a clear abuse of discretion. State v. Purvis, 96-787 (La.App. 3 Cir. 12/11/96), 684 So.2d 567. "In other words, the appellate court will give the trial court's determination great weight and will not set aside the trial court's ruling unless clearly mandated by a preponderance of the evidence." Sherman, 896 So.2d at 1202.

Stop of the Vehicle

The defendant first asserts that the stop of the vehicle was illegal. He asserts that the State never specified a statute to support the stop, and references the police officer's testimony that the vehicle was stopped for impeding the flow of traffic.

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Cite This Page — Counsel Stack

Bluebook (online)
918 So. 2d 598, 2005 WL 3579332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moreau-lactapp-2005.