State v. Singletary

442 So. 2d 707
Louisiana Court of Appeal·Decided November 22, 1983·No. 83 KA 0392·Published·Cited by 8 cases

Opinion

442 So.2d 707 (1983)

STATE of Louisiana
v.
Penny Ann SINGLETARY.

No. 83 KA 0392.

Court of Appeal of Louisiana, First Circuit.

November 22, 1983.

Ossie B. Brown, Dist. Atty., 19th Judicial Dist. of La. by Brett Grayson, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.

James J. Zito, Baton Rouge, for defendant-appellant.

Before SHORTESS, LANIER and CRAIN, JJ.

*708 LANIER, Judge.

The defendant, Penny Ann Singletary, was charged with possession of marijuana with intent to distribute in violation of La. R.S. 40:966(A)(1). Singletary filed a motion to suppress the marijuana in the possession of the state alleging an illegal search and seizure. After a hearing, the trial court denied this motion. Singletary then entered a plea of guilty conditioned on a reservation of the right to appellate review of the trial court's ruling on the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). Singletary was sentenced to serve two years at hard labor in the custody of the Louisiana Department of Corrections, to pay a fine of $1,000, to pay victim reparation cost of $50 and to pay all court costs. The sentence of two years at hard labor was suspended and Singletary was placed on supervised probation for two years with the following special conditions:

(1) submit to substance abuse evaluation and receive such treatment found necessary at her own expense;
(2) remain gainfully employed; and
(3) have no association with Jimmy LeBlanc.

Singletary was granted six months to pay her fine, victim reparation cost and court costs and in default thereof she was sentenced to serve one year in the East Baton Rouge Parish Prison. La.C.Cr.P. art. 884. This appeal followed.[1]

FACTS

On March 11, 1982, at approximately 3:00 P.M., Don Johnson[2] negotiated a purchase from Singletary of one pound of sansemilla (high grade) marijuana for $1,100. The transaction was to be consummated at 9:30 P.M. at a shopping center located on Staring Lane in East Baton Rouge Parish, Louisiana.

At approximately 7:30 P.M. on March 11, 1982, Johnson contacted Sergeant Sam Pruet of the Baton Rouge City Police Department Narcotics Division and advised him of the pending transaction with Singletary. Pruet had worked with Johnson on four previous occasions which resulted in an unspecified number of arrests and the seizure of drugs. Officer Lee Lester Floyd of the Baton Rouge City Police Department Narcotics Division was assigned to go with Johnson for the rendezvous with Singletary. Pruet and Officer McMillon (first name not given) would provide additional surveillance. Johnson advised that Singletary would be in a gold Cadillac.

On March 11, 1982, at 9:30 P.M., a gold Cadillac arrived in the parking lot of the designated shopping center and was observed by Johnson and the police officers. Singletary and Johnson got out of their vehicles and had a short conversation. Johnson got in the Cadillac with Singletary and drove off a short distance. Johnson then exited the Cadillac and returned to the vehicle where Floyd was located and advised that "... yes, I've seen it. It is there." Johnson further advised that the marijuana was in a brown paper bag. After Johnson indicated that the marijuana was in the Cadillac, by prearranged plan, the officers converged on that vehicle, arrested Singletary and seized the marijuana which was located in a plastic bag inside of a brown paper bag found on the front seat floorboard of the car.

WARRANTLESS SEARCH OF VEHICLE

The law applicable in the instant case is succinctly set forth in State v. Denton, 387 So.2d 578, 582 (La.1980), as follows:

It is well settled that a search conducted without a warrant issued upon probable cause 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, *709 29 L.Ed.2d 564 (1971); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Gordon, 332 So.2d 262 (La.1976). One of these exceptions is the so-called "automobile exception." This exception is based upon the existence of probable cause to search the vehicle and exigent circumstances which render it impractical to secure a warrant. Coolidge v. New Hampshire, supra; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Spencer, supra; State v. Gordon, supra....

Singletary contends that exigent circumstances did not exist in the instant case because the delay between the time that Johnson negotiated the drug transaction with Singletary and the time that the search was conducted was sufficient to allow the officers to secure a search warrant, citing State v. Colvin, 358 So.2d 1250 (La. 1978).[3] Although Johnson negotiated with Singletary at 3:00 P.M., the record does not reflect that he is a police officer and he did not advise Sergeant Pruet of the transaction until 7:30 P.M. The police officers were only aware of the pending transaction for two hours prior to its occurrence. In advance of the transaction, the police officers determined not to take action until Johnson verified that the drugs were in Singletary's vehicle. This is a reasonable action for the police to take in verifying the existence of probable cause. State v. Elliot, 407 So.2d 659 (La.1981). The record does not reflect that the police officers deliberately extended their investigation to circumvent the necessity for a warrant or for any other improper motive. State v. Cunningham, 412 So.2d 1329 (La.1982); State v. Littleton, 407 So.2d 1208 (La. 1981); State v. Hearn, 340 So.2d 1365 (La. 1976); State v. Tant, 287 So.2d 458 (La. 1973); United States v. Weinrich, 586 F.2d 481 (5th Cir.1978). Singletary cannot prevail on this argument.

Singletary next contends that the police were required to obtain a warrant in the instant case because the marijuana was located in a closed container (brown paper bag) in her vehicle, citing Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) and State v. Michael Hernandez, 410 So.2d 1381 (La.1982). The holding in Robbins was rejected by the United States Supreme Court in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982) with the following language:

Our decision today is inconsistent with the disposition in Robbins v. California and with the portion of the opinion in Arkansas v. Sanders [442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979)] on which the plurality in Robbins relied. Nevertheless, the doctrine of stare decisis does not preclude this action. Although we have rejected some of the reasoning

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