State v. Shepherd

470 So. 2d 608
CourtLouisiana Court of Appeal
DecidedMay 29, 1985
DocketKA 84 1345
StatusPublished
Cited by17 cases

This text of 470 So. 2d 608 (State v. Shepherd) 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. Shepherd, 470 So. 2d 608 (La. Ct. App. 1985).

Opinion

470 So.2d 608 (1985)

STATE of Louisiana
v.
Janice SHEPHERD.

No. KA 84 1345.

Court of Appeal of Louisiana, First Circuit.

May 29, 1985.

*609 Ossie Brown, Dist. Atty. by Mike Nunnery, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.

*610 Warren Hebert, Baton Rouge, for defendant-appellant.

Before COLE, CARTER and LANIER, JJ.

LANIER, Judge.

The defendant, Gances Marie "Janice" Dixon Shepherd,[1] was charged in a bill of information with one count of possession with intent to distribute pentazocine in violation of La.R.S. 40:964, Schedule II (D)(2), and 40:967(A)(1) and (B)(2) and one count of possession with intent to distribute phenmetrazine in violation of La.R.S. 40:964, Schedule II (C)(3), and 40:967(A)(1) and (B)(3). She filed a motion to suppress contending the drugs for which she was charged were unlawfully seized without a warrant, probable cause or exigent circumstances in violation of her constitutional rights. After a hearing, the district court denied the motion to suppress. Subsequently, the defendant pled guilty to the first count of the information, possession with intent to distribute pentazocine, and reserved her right to contest the ruling on the motion to suppress on appeal. State v. Crosby, 338 So.2d 584 (La.1976). The State dismissed the second count of the information and dismissed another bill of information charging her with counts of possession of phenmetrazine and diazepam. The defendant was then sentenced to four years at hard labor in the custody of the Louisiana Department of Corrections without benefit of parole, probation or suspension of sentence. This appeal followed.

FACTS

At approximately 6:00 p.m. on February 23, 1984, Lt. Samuel A. Pruit of the Baton Rouge City Police Department received a telephone call from a confidential informant (CI). The CI had given information over a three year period on "numerous other cases" which resulted in three or four arrests (one of which involved preludin coming from California). The CI said Janice Shepherd would leave her home on Scenic Highway in a few minutes and drive to her mother's home on Washington Avenue to pick up thirty sets of T's and Blues (the street name for pentazocine [Talwin] and pyribenzamine). The CI also indicated Shepherd would exit the interstate on Washington Street[2] and would deliver the drugs to an address in South Baton Rouge.

Pruit contacted Detectives Tully Vincent and David Whatley (who were in separate police units) to set up surveillance at Shepherd's home as quickly as possible. Shortly thereafter, the detectives arrived on Scenic Highway and observed Shepherd leaving the house at 1821 Scenic Highway in a maroon and cream 1977 Lincoln Continental. She was accompanied by two small children.

The detectives followed Shepherd to a house in the 2800 or 2900 block of Washington Avenue in North Baton Rouge. (The detectives later learned the house belonged to Martha White, Shepherd's mother.) Shepherd entered the house and remained inside for approximately ten minutes. Shepherd and the children left the house and proceeded to Interstate I-10 and then traveled southbound. The detectives called for assistance of additional units and stopped Shepherd on the Washington Street exit ramp in South Baton Rouge.

Lt. Pruit testified about what happened after Shepherd's vehicle was stopped as follows:

Q You could not see any drugs in the vehicle without actually searching through it?
A There was a napkin on the front seat. That's what they were in.
Q The drugs—answer my question. Were the drugs visible without an officer entering the vehicle and searching it?
A Oh, no.
*611 Q You obtained no consent from Janice Dixon to search her vehicle, did you?
A No.
Q Prior to searching her vehicle, you secured Ms. Dixon from her vehicle and her children also, didn't you?
A Yes.
....
Q I didn't know he moved. Okay. But everybody was secured from the vehicle.
A That's correct.
Q And then the search was conducted?
A Yes.

However, Detective Vincent gave this testimony:

Q What happened once the vehicle was stopped there at the exit off the Interstate at Washington?
A Ms. Dixon was ordered from her vehicle as well as her children or the two kids that were with her. I'm trying to think of what officer took control of Ms. Dixon.
THE COURT: Was the car searched?
A Yes, sir. Through the—in the front seat of the car, this is something that I did observe. Detective Whatley looked in on the front seat. There was a piece of aluminum foil laying on the front seat and a napkin that was rolled up on the front seat. Detective Whatley removed these two items from the vehicle and in these particular items, controlled dangerous substances were found.
Q Was there anything else on the front seat other than those two items?
A That's the only two items that I observed Detective Whatley come out of the car with.

Detective Whatley was not called to testify.

VALIDITY OF SEIZURE OF DRUGS

The defendant contends the seizure of the drugs resulted from an unreasonable search because the CI did not reveal the source of the information furnished, citing State v. Ruffin, 448 So.2d 1274 (La.1984).

The State bears the burden of proving the admissibility of evidence seized during a search without a warrant. La.C. Cr.P. art. 703(D). A search conducted without a warrant is per se unreasonable under the fourth amendment, subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these is the "automobile" exception which is based upon the existence of probable cause to search the vehicle and exigent circumstances which render it impractical to secure a warrant. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). A second exception to the rule is that a search may be conducted without a warrant when it is an incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). When the occupant of an automobile is arrested, the police, as a contemporaneous incident of that arrest, may search the passenger compartment of the automobile. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Singletary, 442 So.2d 707 (La.App. 1st Cir.1983).

An arrest is defined in La.C.Cr.P. art. 201 as follows:

Arrest is the taking of one person into custody by another.

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Bluebook (online)
470 So. 2d 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shepherd-lactapp-1985.