State v. Perry

900 So. 2d 313, 2005 WL 839667
CourtLouisiana Court of Appeal
DecidedApril 13, 2005
Docket39,644-KA
StatusPublished
Cited by2 cases

This text of 900 So. 2d 313 (State v. Perry) 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. Perry, 900 So. 2d 313, 2005 WL 839667 (La. Ct. App. 2005).

Opinion

900 So.2d 313 (2005)

STATE of Louisiana, Appellee
v.
William PERRY, Appellant.

No. 39,644-KA.

Court of Appeal of Louisiana, Second Circuit.

April 13, 2005.

*315 G. Paul Marx, Louisiana Appellate Project, for Appellant.

Walter E. May, Jr., District Attorney, James R. Hatch, Assistant District Attorney, for Appellee.

Before BROWN, MOORE, and LOLLEY, JJ.

BROWN, C.J.

On November 19, 2002, while driving in Homer, Louisiana, William "Junior" Perry, who was on parole from a prior drug conviction, was stopped for a seatbelt violation. The officer checked the registration of the car and criminal history of both Perry and his passenger, David Marcus Hicks. The vehicle was registered in Arkansas to someone other than Perry, and Perry explained that he was in the process of buying the car. Hicks had an outstanding warrant for failure to appear on a traffic ticket. Both Perry and Hicks consented *316 to a search of the car. A marijuana roach was found in a Kool cigarette pack which Hicks admitted was his. Hicks was arrested on the warrant, and Perry's parole officer was called to the scene. Perry admitted to his parole officer to using methamphetamine and was taken to the police station for a drug screen. Perry tested positive for marijuana and methamphetamine. When the passenger in Perry's vehicle told officers with the Claiborne Parish Metro Narcotic Task Force that he had purchased marijuana from Perry and that Perry probably had a substantial amount in his cottage, the parole officer conducted a warrantless search of the cottage and found a brick of marijuana weighing about a half a pound in the bedroom closet and a small amount of methamphetamine in a bedside table. Perry was charged in a two count bill of information with possession of marijuana with intent to distribute and second offense possession of methamphetamine.

A jury found Perry guilty of the lesser and responsive charge of attempted possession of marijuana with intent to distribute. Perry was found not guilty of the possession of methamphetamine count. The trial court sentenced Perry to ten years at hard labor.[1] Perry has appealed his conviction. For the reasons set forth below, we affirm both defendant's conviction and sentence.

Discussion

Motion to Suppress

Defendant moved to suppress the evidence seized at the search of his cottage and the statement he gave following his arrest. Initially, he claims that the stop by Officer Mills for a minor traffic violation was merely a pretext to allow further investigation concerning illegal drug activity.

The background of the traffic stop is as follows:

Sergeant David Morgan, a Haynesville police officer who was commissioned to work throughout Claiborne Parish as a member of the Claiborne Parish Metro Narcotics Task Force,[2] received a tip from a confidential informant ("C.I.") that defendant was trafficking drugs. Thereafter, on November 19, 2002, while driving through Homer, another city in Claiborne Parish, Sgt. Morgan spotted defendant driving a vehicle. Hicks was a passenger in the car. Sgt. Morgan noticed that neither defendant nor his passenger was wearing a seatbelt. Sgt. Morgan, who was in an unmarked vehicle, radioed Homer police for assistance and continued to follow Perry's vehicle. Homer Police Officer Russell Mills responded and pulled defendant's car over for the seatbelt violation. Another Homer police officer, Donald Malray, arrived at the scene of the stop.

The patrol officers followed standard procedure in checking registration and criminal history, then arrested Hicks on an outstanding warrant. Hicks admitted to having a small amount of marijuana in the car. Perry and Hicks consented to a search of the car. When Officers Mills and Malray found the butt of a smoked *317 marijuana cigarette, Sgt. Morgan called for assistance and another member of the Metro Task Force, Claiborne Deputy James Spillers, arrived on the scene with State Trooper George Shirey.

Defendant does not dispute that he was driving without wearing his seatbelt. Sgt. Morgan observed this violation and reported it to Officer Mills, who clearly had probable cause to stop the car defendant was driving. Defendant's complaint focuses on what he believes was the actual motivation for the stop. In effect, he argues that the police have co-opted traffic codes as a weapon to be used in the "war on drugs" by making stops for insignificant conduct, such as seatbelt violations, to search for drugs. However, constitutional reasonableness of a traffic stop does not depend on the actual motivation of the individual officer involved. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

In Whren, the U.S. Supreme Court held that the constitutional reasonableness of a traffic stop does not depend on an individual officer's motivations. All that is required is probable cause to believe that a traffic violation has occurred. The court found that it would be impractical to forbid law officers from stopping a traffic offender whom police suspect might be engaged in more serious criminal activity. The subjective motive of the individual officer is irrelevant if a violation of the traffic code has occurred. Whren, supra. In the instant case, the traffic stop was valid.

Officer Mills determined that the passenger, David Marcus Hicks, was wanted for failure to appear on a traffic ticket and properly took Hicks into custody. Hicks indicated to Officers Mills and Malray that he had a small amount of marijuana in the car and both Hicks and defendant consented to a vehicle search. Marijuana was found, and then the narcotic officers got involved.

Deputy Spillers recognized Perry and asked whether he was still on parole. Perry told Deputy Spillers that his parole officer was Carroll Holmes. Deputy Spillers called Holmes, who, along with probation officers Leah Smith and Shirley Warren, came to the scene. All three worked out of the Minden (Webster Parish) Probation and Parole office, but were in Homer to effect another arrest. When questioned, defendant told Officer Holmes that he had been using methamphetamine, and showed the officer a place on his arm where a blood vessel had been damaged when he injected the drug. Officer Holmes took defendant to the Homer Police Station for a drug screen. Defendant tested positive for marijuana and amphetamine.

Initially, Officer Holmes intended to release defendant for substance abuse treatment at the Pines Treatment Center in Shreveport; however, Deputy Spillers advised Officer Holmes that Hicks, who had been arrested and taken to the police station, claimed that he had bought marijuana from defendant, who probably had a substantial quantity of marijuana stored in his residence.

Defendant, at the end of October 2002, had moved into a one-bedroom caretaker's cottage located on property belonging to E.S. Toadvin. Defendant was working for Toadvin as a construction foreman. Loretta Morgan, who had recently completed a jail sentence for a drug offense, was living with defendant. Hicks had been the previous occupant of the cottage, having vacated it when defendant began his tenancy.

Probation Officers Holmes, Smith, and Warren told defendant that they wanted to search his residence for drugs. When asked whether they would find any drugs *318 at his home, defendant told the officers that he did have some "personal use" marijuana at his residence.

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Cite This Page — Counsel Stack

Bluebook (online)
900 So. 2d 313, 2005 WL 839667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perry-lactapp-2005.