State v. O'Shea

696 So. 2d 115, 1997 WL 269524
CourtLouisiana Court of Appeal
DecidedMay 21, 1997
Docket97-K-0400
StatusPublished
Cited by8 cases

This text of 696 So. 2d 115 (State v. O'Shea) 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. O'Shea, 696 So. 2d 115, 1997 WL 269524 (La. Ct. App. 1997).

Opinion

696 So.2d 115 (1997)

STATE of Louisiana
v.
Patricia O'SHEA and Michelle Niemeir.

No. 97-K-0400.

Court of Appeal of Louisiana, Fourth Circuit.

May 21, 1997.
Rehearing Denied July 15, 1997.

*116 Harry F. Connick, District Attorney, Jeanette Flippen Ward, Assistant District Attorney, Marcia Hannewalt, Law Clerk, Parish of Orleans, New Orleans, for Plaintiff/Relator, State of Louisiana.

Richard A. Tonry, Michael C. Ginart, Kim Cooper Jones, Law Offices of Tonry & Ginart, Chalmette, for Defendant/Respondent, Patricia O'Shea.

Eric A. Bopp, Edward S. Bopp—A Law Corporation, Arabi, for Defendant/Respondent, Michelle Niemeir.

Before KLEES, ARMSTRONG and MURRAY, JJ.

MURRAY, Judge.

In this writ application, the State seeks relief from the trial court's grant of defendants' motions to suppress evidence and statements. Upon review of the testimony presented and after consideration of the application and both oppositions, we grant the writ and reverse the judgment below. The stay order previously entered is vacated, and the matter is remanded for further proceedings.

FACTS

The only evidence presented in this matter was the testimony of Louisiana State Trooper John Schmidt, assigned to the South District Narcotics Section. The officer testified that Dominick Datcharo[1] had been arrested on drug charges in August 1995, and subsequently had agreed to "work off" these charges by cooperating with the State Police. During the course of a continuing investigation, which also involved the federal Drug Enforcement Agency, both Mr. Datcharo and an unnamed informant had stated that drugs were sometimes stored at Mr. Datcharo's girlfriend's apartment. Surveillance was instituted outside of the gated apartment complex where Patricia O'Shea lived, and the authorities maintained contact with both Mr. Datcharo and the other informant for several months.

During their investigation, the State Police learned that despite his apparent cooperation, Mr. Datcharo continued to engage in drug transactions that were not within the purview of their undercover operation. Near the end of February 1996, Mr. Datcharo borrowed Ms. O'Shea's car which the informant then used to drive to Houston and pick up fourteen pounds of marijuana. Mr. Datcharo accepted this shipment from the informant and was arrested at a supermarket parking lot near his girlfriend's apartment complex. After Mr. Datcharo's arrest, he said he had been at Ms. O'Shea's apartment prior to his receipt of the drugs, and he gave Trooper Schmidt her apartment number. He also admitted that he had hidden the shipment of marijuana between two air conditioner units that served her apartment complex, and this evidence was seized by the police.

Trooper Schmidt, accompanied by a DEA agent and another trooper, then went to the apartment Mr. Datcharo had said was occupied by his girlfriend, Ms. O'Shea. He knocked on the door, and a woman's voice said "come in." The investigators entered the unlocked door and identified themselves to Ms. O'Shea, who was seated on the sofa in the living room. As Trooper Schmidt explained that they were investigating "Rocky" Datcharo, who had just been arrested for drug dealing, he saw a clear plastic bag on the coffee table right in front of Ms. O'Shea. The officer recognized the contents as marijuana.

Ms. O'Shea's roommate, Michelle Niemeir, then arrived at the apartment with two *117 friends. Trooper Schmidt again explained their presence and, after brief questioning, the two friends were permitted to leave. Ms. O'Shea and Ms. Niemeir were asked if they would consent to a search of their apartment; Trooper Schmidt admits he might have said that if they did not consent, he would get a search warrant. Both women agreed to permit a search and signed a written consent form. They were both advised of their rights and placed under arrest for possession of the marijuana on the coffee table, although Ms. O'Shea said it belonged to Mr. Datcharo, who had left it there when he visited earlier. Ms. Niemeir and Ms. O'Shea then accompanied the officers as the apartment was searched, pointing out the location of contraband and identifying some of the items as cocaine and LSD. In later statements, Ms. O'Shea said all of the drugs belonged to Mr. Datcharo, and Ms. Niemeir denied any knowledge of drugs on the premises because she actually spent very little time at that apartment. However, a document found during the search indicated that the apartment was leased by both women.

PROCEEDINGS IN THE TRIAL COURT

Ms. O'Shea was charged with simple possession of LSD, ecstasy, codeine and marijuana (one count of each), while Ms. Niemeir was charged with one count of possession of cocaine. Both defendants moved for a determination of probable cause and filed motions to suppress the evidence and statements obtained in connection with the arrest and search. At the hearing on these motions, the district judge participated in questioning the witness, especially concerning the role played by the unnamed informant.

After the court heard Trooper Schmidt's testimony, as summarized above, the State submitted on the preliminary hearing and motion to suppress evidence, but asked that the motion to suppress statements be held open for testimony by the officers who had taken those statements. Without a ruling on this request, the parties were directed to address their arguments to three specific issues regarding the source, timing and reliability of an informant's disclosures when used to justify a warrantless search, as well as whether a "consent to search is invalid if the initial intrusion was without probable cause." The State's motion for time to submit briefs was denied.

The State then orally argued that Trooper Schmidt had reasonable suspicion to approach the defendants' apartment based upon knowledge acquired throughout the months-long investigation, including not only details from the informant but also from their surveillance of Mr. Datcharo. In addition, the information linking this apartment to recent drug activity had been received in the vicinity of the apartment complex and less than thirty minutes before the apartment was entered. The State further argued that because neither force nor subterfuge was used to enter the apartment and the officers had obtained valid consent for the search, the motions to suppress should be denied.

Counsel for the defendants pointed out that there had been no substantiation of the informant's reliability, and that Trooper Schmidt could not say with any certainty how long it had been since he was told drugs were kept in "an" apartment where Ms. O'Shea lived. Furthermore, the defense contended, after Mr. Datcharo was arrested at another location and the recent drug shipment had been seized, there were no exigent circumstances which justified the failure to obtain a search warrant. In the absence of either probable cause or a warrant to search, and because the officers did not identify themselves before entering the apartment, the defendants asserted that both the evidence and the statements obtained as a result of the illegal entry had to be suppressed.

The trial court ruled that there was no probable cause for the defendants' arrest and that the search and seizure was illegal, requiring suppression of both the evidence and the inculpatory statements. In oral reasons, the judge explained:

I find that any and all information provided by the confidential informant identified in this case as Datcharo was unreliable and unworthy of belief. I also find that ... he was acting as a triple agent in that ...

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Cite This Page — Counsel Stack

Bluebook (online)
696 So. 2d 115, 1997 WL 269524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-oshea-lactapp-1997.