State v. Porche

943 So. 2d 335, 2006 WL 3423149
Supreme Court of Louisiana·Decided November 29, 2006·No. 2006-KK-0312·Published·Cited by 34 cases

Opinion

943 So.2d 335 (2006)

STATE of Louisiana
v.
Farrell PORCHE.

No. 2006-KK-0312.

Supreme Court of Louisiana.

November 29, 2006.

*336 Charles C. Foti, Jr., Attorney General, Paul D. Connick, Jr., District Attorney, Megan L. Gorman, Jacqueline F. Maloney, Assistant District Attorneys, for Applicant.

DeSalvo, DeSalvo & Blackburn, Frank G. DeSalvo, New Orleans, F. Gerald DeSalvo, Jr., Gretna, for Respondent.

Prior report: 930 So. 2d 6.

PER CURIAM.

The state has charged defendant/respondent by bill of information with possession of cocaine in an amount greater than 28 grams but less than 200 grams. La.R.S. 40:967(F)(1)(a). Respondent moved to suppress the evidence, and after conducting a hearing in March 2005, the trial court granted the motion. The Fifth Circuit denied the state's application for review of that ruling, finding "no abuse of the trial court's discretion in this case." State v. Porche, 05-0982 (La.App. 5th Cir.1/10/06). We granted the state's application to reverse the rulings below because we agree with the state that the probable cause basis for the search warrant authorizing recovery of the evidence was not derivatively tainted by any prior illegal conduct of the police.

As detailed in the affidavit of probable cause supporting the search warrant and in the testimony of Lieutenant Ronald Hoefeld at the hearing on the motion to suppress, the events leading to the seizure of cocaine in the present case began on the morning of December 30, 2003 with a call to the Jefferson Parish Sheriff's Office placed by Louette Young, who reported a possible burglary in progress at the Citrus Creek Apartments on Citrus Boulevard in Kenner, Louisiana. Young met with sheriff's deputies in the parking lot of the apartment complex, told them that she had heard the sound of glass breaking in her apartment and other noises from inside and expressed concern that someone had broken into her apartment and was still there. The deputies found no evidence of forced entry but entered the apartment to secure the premises and found clothing strewn throughout the apartment and several pieces of furniture pulled in front of the door leading to the master bedroom. During a protective sweep of the apartment, the deputies entered the bedroom and discovered a glass container and a sandwich bag containing a single large piece of white compressed powder on the floor next to the bed. The deputies also recovered approximately two grams of green vegetable matter from the same location. Field tests revealed the presence of marijuana and cocaine. With their putative victim now a suspect in a drug investigation, the deputies placed Young under arrest, obtained her consent to continue searching her apartment, and retrieved $1200 in various denominations of currency. They also summoned members of the Narcotics Division to take over the investigation.

*337 Lieutenant Hoefeld, a member of the Jefferson Parish Sheriff's Office Narcotics Division, responded to the call. As the other officers on the scene briefed him on the investigation, respondent knocked at the door of the apartment. Hoefeld opened the door, informed respondent that he had stumbled onto a police investigation, and asked him to state his business. Respondent replied that he was there to see Ms. Young but that he thought he was at the wrong apartment. Hoefeld knew at the time from the other officers on the scene that Young had called respondent earlier and summoned him to the apartment. When he was asked about that call, respondent acknowledged that he had spoken to Young but continued to express uncertainty over whether he was at the right apartment. According to Lieutenant Hoefeld, respondent seemed "very surprised to see the police presence in the apartment and appeared to be visibly shaken by it." The officer asked respondent if he had any identification on him and respondent indicated that his identification was in his apartment which was also located in the Citrus Creek complex.

At this point in the investigation, Lieutenant Hoefeld decided to detain respondent and he placed him in handcuffs. The officer then asked respondent if he could accompany him to his apartment to obtain his identification. Respondent agreed and led Lieutenant Hoefeld and another deputy to his apartment where he provided the officers with a key to his door. When Hoefeld opened the door, the officers immediately detected a strong acidic chemical odor which they associated with cocaine. Hoefeld noticed that respondent's nervousness had increased and that he had begun shaking. The officer observed in the kitchen area to the immediate right of the doorway a large stack of currency on a table; he also noticed a smaller stack of currency on a table in the living room. The officer asked respondent about the money and chemical odor, and when Hoefeld received no response, he placed respondent under arrest and gave him his Miranda warnings.

Lieutenant Hoefeld then spotted a shopping bag on the floor of the kitchen and concluded it was the source of the heavy chemical odor permeating the apartment. When he peered into the partially opened bag the officer could see numerous sandwich baggies, a black scale and several loose plastic shopping bags. Asked by Hoefeld if he had any illegal drugs in the apartment or in the shopping bag, respondent this time acknowledged that there was "a large amount" of drugs in the bag, by which he meant, "enough to get me." However, respondent refused to give consent to a search of the bag. Lieutenant Hoefeld therefore got on the telephone and called in the results of his investigation. The information became the basis of the warrant application presented to the magistrate who then authorized a search of the apartment and the bag. Inside the bag the officers found a smaller, locked bank bag containing three plastic bags filled with cocaine, another bag containing marijuana, a digital scale, and four boxes of zip-lock bags in various sizes.

Lieutenant Hoefeld conceded during the suppression hearing that when he first encountered respondent he had no evidence connecting him with either the reported burglary or with the narcotics the other deputies had found in Ms. Young's apartment. However, the officer explained that defendant's nervous demeanor, hesitation about why he was at the doorway of Ms. Young's apartment, and his statement that he thought he was at the wrong apartment aroused his suspicion, as he knew that Ms. Young had summoned respondent over the telephone. Lieutenant Hoefeld further explained that he had then detained respondent *338 and placed him in handcuffs as the police attempted to confirm his identity "for our safety as well as his safety and the circumstances; not knowing exactly who was involved or who was not involved in the illegal narcotics that was found in the apartment."

In its written reasons for granting the motion to suppress, the trial court found that respondent's visible reaction to the officers' presence in Ms. Young's apartment "could be an appropriate reaction to a police investigation at a friend's apartment." The court further found that "without any other articulated activity, the police did not have the right to detain" respondent on reasonable suspicion supporting an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The court therefore concluded that Lieutenant Hoefeld's exploitation of that primary illegality derivatively tainted the warrant application's probable cause showing and

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State v. Porche, 943 So. 2d 335, 2006 WL 3423149 (La. 2006).

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