State v. Oliver

448 So. 2d 156
CourtLouisiana Court of Appeal
DecidedMarch 13, 1984
Docket83-KA-636
StatusPublished
Cited by7 cases

This text of 448 So. 2d 156 (State v. Oliver) 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. Oliver, 448 So. 2d 156 (La. Ct. App. 1984).

Opinion

448 So.2d 156 (1984)

STATE of Louisiana
v.
Lance OLIVER.

No. 83-KA-636.

Court of Appeal of Louisiana, Fifth Circuit.

March 13, 1984.

*157 Paul Connick, William C. Credo, III, Asst. Dist. Attys., Gretna, for plaintiff/appellee.

Joseph Montgomery, Staff Appeals Counsel, 24th Judicial Dist. Indigent Defender Bd., Gretna, for defendant/appellant.

Before BOWES, GRISBAUM and DUFRESNE, JJ.

BOWES, Judge.

Defendant, Lance Oliver, appeals his conviction and sentence on the charge of possession of a controlled dangerous substance [LSA R.S. 40:967(C)]. We affirm both the conviction and the sentence.

The defendant, Lance Oliver, along with a co-defendant, Ron McCord, was charged by Bill of Information with one count of possession of amphetamines and one count of possession of cocaine, both violations of LSA-R.S. 40:967(C). Pursuant to negotiations with the State, the Bill of Information was amended to a charge of one count of possession of pentazocine. The defendant entered a plea of guilty to this charge reserving his right to seek appellate review of the trial court's denial of his Motion to Suppress, pursuant to State v. Crosby, 338 So.2d 584 (La.1976). Consistent with the plea bargain agreement, the defendant, Oliver, was sentenced to serve one year in the Jefferson Parish Correctional Center. Execution of this sentence was suspended and Oliver was placed on active probation for a term of one year. As a special condition of probation, he was ordered to pay a fine of $1,000.00 and court costs in the amount of $110.00 on or before August 11, 1983.

About 4:10 p.m., on the afternoon of August 24, 1982, two officers from the Gretna Police Department were dispatched to 325 Weyer Street, Gretna, La., in response to a citizen's call concerning a drug violation in progress.

As the first officer, Patricia Rome, arrived at the location, she was met in the parking lot of the small apartment complex by an unidentified complainant who informed Officer Rome that two men were in a camper "shooting up ... right now" (R. p. 43) and directed her to a camper mounted on the back of a pick-up truck. As Officer Rome was conducting her brief interview with the complainant, Officer Henry Levenson arrived on the scene. Together they approached the camper and knocked on the door. Lance Oliver responded to the knock and stepped out onto the tailgate, leaving the door wide open behind him. Both officers glanced inside the camper and observed the co-defendant with a handful of syringes, trying to place them under the seat. Two additional syringes were on the table in front of him, along with a coffee cup containing a substance later identified as a controlled dangerous substance. The officers then entered the camper, seized the syringes and cup, and arrested the subjects.

At the hearing on the Motion to Suppress, the defendant asserted that he had exited the camper before he was arrested and it was only after detaining him that the officers entered and searched the camper for contraband.

*158 The defendant now appeals, arguing a single assignment of error. A second assignment was not argued in appellant's brief and is, therefore, considered abandoned.

ASSIGNMENT OF ERROR NUMBER 1

The trial judge committed reversible error in failing to grant defendant's motion to suppress, which failure violated C.Cr.P. art. 703 and Article 1, Section 5 of the Louisiana Constitution.

Two versions of the defendant's arrest and the seizure of the controlled substance were presented at the suppression hearing. From the articulated reasons of the trial court in denying the defense motion, it is apparent that the trial judge found the narrative of the police officers on the scene more deserving of belief than that of the defendant.

"In reviewing the trial judges' ruling ... his conclusion on credibility are entitled to the respect due those made by one who saw the witnesses and heard them testify." State v. Rodrigue, 409 So.2d 556, 561 (La. 1982).

We fully agree with the astute trial judge. The version of the officers is consistent, logical and believable. The version of the defendant requires one to believe that he was wearing long sleeves in August and that he had, while sleeping, received ant bites "all over my arms, legs, any skin that is exposed when you are sleeping", and that scratching these bites, and not a syringe's needle, caused the blood on his arms. We find this story incredulous.

The appellant asserts in his brief (p. 2) that

[E]ven if the officers [sic] version of what occurred is accepted as true, there is a serious problem in that the officers were acting purely and simply upon the "tip" of the alleged informant, whom neither officer was really able to identify and who apparently had never actually furnished information to the Police Department in Gretna before. There is no question but that the "tip" of this informant would have been insufficient if the officers had attempted to use it as a basis for a search warrant.

At the suppression hearing, Officer Patricia Rome conceded that, at the time she knocked on the door of the camper, she had no probable cause to either arrest the occupants or search the "vehicle".

The testimony of both officers established that their only purpose for approaching the premises was to further investigate the complaint of the unidentified citizen-informant who had advised them that she had seen the occupants of the camper "shooting up."

The plain view rule is set forth in State v. Brown, 370 So.2d 525, 527 (La. 1979) as follows: "[w]hen an officer inadvertently observes evidence of a crime from a vantage point that does not intrude upon a protected area or when that protected area is entered with prior justification, there is no violation of the search warrant rule because there has been no `search.'" [citations omitted]

The question posed by the defense is whether the officers were justified in knocking on the door to the defendant's camper so as "to be where they had a right to be" when the controlled dangerous substance was observed, thereby falling within the parameters of the plain view doctrine to legitimate the subsequent seizure.

The defense asserts that "probable cause" is necessary to justify an officer's knock at the door of a residence. Further, counsel argues that the uncorroborated tip of an unidentified, unproven, informant cannot constitute "probable cause" to violate the defendant's right to privacy.

While we agree that the informant's "tip" did not establish probable cause to justify a search, we find such probable cause is not required to knock at the door of a residence. In State v. Sanders, 374 So.2d 1186 (La.1979), the court held:

Knocking at the door violated no right of privacy; that single action by the police did not infringe on defendant's *159 "right to be let alone." It is an almost implicit understanding and custom in this country that, in the absence of signs or warning, a residence may be approached and the occupants summoned to the door by knocking.
Defendant was free to refuse to open the door or to slam it shut once opened. His freedom of movement was never infringed upon and no search or seizure occurred except on the basis of defendant's voluntary actions.

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), a plurality of the U.S.

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Bluebook (online)
448 So. 2d 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-oliver-lactapp-1984.