State v. Thompson

543 So. 2d 1077, 1989 WL 48909
Louisiana Court of Appeal·Decided May 10, 1989·No. 20483-KA·Published·Cited by 47 cases

Opinion

543 So.2d 1077 (1989)

STATE of Louisiana, Appellee,
v.
Ted B. THOMPSON, Appellant.

No. 20483-KA.

Court of Appeal of Louisiana, Second Circuit.

May 10, 1989.
Rehearing Denied June 1, 1989.

*1078 Milton Dale Peacock, Monroe, Don Ervin, Houston, Tex., for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, James A. Norris, Jr., Dist. Atty., Marcus R. Clark, Asst. Dist. Atty., Monroe, for appellee.

Before HALL, MARVIN and FRED W. JONES, Jr., JJ.

MARVIN, Judge.

Pleading guilty with a Crosby reservation to the crimes of possession of 260 pounds of marijuana and of conspiracy to distribute marijuana, defendant appeals the denial of his motion to suppress the marijuana which was seized from his pickup after he was stopped for a traffic violation. He also complains that his sentences, which total 13½ years at hard labor, plus default time if fines are not paid, should not have been made consecutive because he is a first felony offender and the crimes arose out of a single course of conduct.

We affirm.

FACTS

On September 23, 1987, State Trooper Coleman, on routine highway patrol on I-20 in Ouachita Parish, saw a pickup ahead of him weaving from its lane of travel into the adjacent lane and onto the shoulder. After observing this for about two miles, Coleman, using his emergency lights, signaled the truck driver to pull over. The driver, Ted B. Thompson, continued driving at the same speed, and weaving, for another four miles.

Coleman then pulled up beside Thompson and motioned him to pull over at 6:20 p.m. Thompson followed Coleman's instructions to exit his truck and approach the trooper's car. Thompson apologized for not stopping sooner even though Coleman had not said anything to him about following and signalling him for four miles.

*1079 Coleman asked Thompson for his driver's license, noticing that Thompson was breathing rapidly and his hands were shaking as he tried to get his license out of his wallet. Coleman also said he could see from the blood vessels in Thompson's neck that his heart was "beating pretty fast." Coleman acknowledged that most people are nervous when they are stopped by a state trooper but said Thompson was "overly" or "extremely" nervous.

Thompson, a resident of Atlanta, Georgia, did not have a driver's license but had two papers indicating that he had completed a driver improvement program after his license was suspended for a Georgia DWI conviction. At Coleman's request, Thompson produced the truck's registration from his wallet.

Coleman walked to the front of the truck to verify the VIN on the registration form. A camper shell covered the cargo bed of the truck but did not prevent Coleman from seeing that the bed contained numerous cardboard boxes, taped shut. Coleman then walked to the truck's tailgate, where he smelled a deodorizing agent he described as either fabric softener or air freshener. He explained that five years of experience in traffic stops and drug arrests had taught him that these aromas were sometimes used in an attempt to mask the odor of marijuana.

Each time Coleman neared the truck Thompson placed himself between Coleman and the truck. Coleman perceived this as an attempt to keep him away from the truck, acknowledging, however, that Thompson may have been trying only to keep in front of him as the two conversed.

Coleman then had Thompson accompany him to the patrol unit. Coleman verified by radio contact with troop headquarters that Thompson's driver's license was no longer suspended and that his criminal record consisted only of traffic offenses. Coleman wrote Thompson a ticket for improper lane usage and asked him what was in the taped boxes in the back of the truck. Thompson answered, "personal belongings." The recited sequence of events took about 10 minutes.

Coleman then told Thompson at 6:30 p.m. he suspected there was contraband in the truck and asked if Thompson would sign a consent to search form Coleman was completing with date and time. Within a few minutes and after some discussion, Thompson refused to consent to the search. Coleman told him he was going to hold the truck and call headquarters for a drug detection dog. Coleman did so at 6:36 p.m. At 6:45 p.m. Coleman was told by his headquarters that a dog was en route. Five minutes later, a Metro narcotics officer arrived, confirming to Coleman that a dog was en route.

A second Metro narcotics officer arrived at 7:06 p.m. with his dog. The dog was trained to detect marijuana, hashish, cocaine and heroin. At 7:08 p.m. the dog alerted on the truck's tailgate. At 7:12 p.m., a West Monroe police officer arrived with a second and similarly trained dog. The second dog alerted on the truck's tailgate at 7:14 p.m.

Coleman and his superior, Sgt. Cannon, then asked Thompson for the keys to the truck. Thompson initially refused to give them the keys without a search warrant, but soon agreed. Coleman unlocked the truck's tailgate at 7:28 p.m. He counted 26 cardboard boxes taped shut. He opened one box and found a plastic bag containing vegetable matter later identified as marijuana. At 7:31 p.m. Thompson was arrested for possession of marijuana and was later charged with possessing 260 pounds.

MOTION TO SUPPRESS

Thompson concedes he was lawfully stopped for a traffic violation but contends he was unlawfully and unreasonably detained after being given the traffic ticket. He argues there were no articulable facts to support Trooper Coleman's suspicion that there was contraband in the truck. Thompson contends in the alternative that his detention was unreasonably long even if based on a suspicion that was reasonable.

Thompson's detention must be based on reasonable suspicion that he has been, is, *1080 or is about to be engaged in criminal conduct. CCrP Art. 215.1. Reasonable cause for such detention has been said to be something less than probable cause and is to be assessed according to the totality of the facts and circumstances known to the police officer, from which in retrospect, it can be determined whether an infringement on the individual's right to be free from governmental interference was constitutionally permissible. See State v. Belton, 441 So.2d 1195 (La.1983), U.S. cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543.

Belton recognizes that flight, nervousness or a startled response to the sight of a police officer is, of itself, insufficient to justify an investigatory stop, but nevertheless may be "highly suspicious" and may be considered along with other facts and circumstances in the reasonable cause inquiry. 441 So.2d at 1198. The officer's experience "on the street" also may be considered in assessing whether he made reasonable inferences from the facts at hand. State v. Meyers, 520 So.2d 842, 845 (La.App. 3d Cir.1987).

The trial court gave these reasons for denying the motion to suppress:

In this case whereas the simple word "nervousness" or some state simply called nervousness is called a subjective observation[,] the physical manifestations which are frequently associated with that term are objective manifestations which the officer described here. The movements of the vehicle creating a substantial hazard on the highway ... the unusual circumstances about the defendant's driver's license ... the movements of the defendant between the officer and the vehicle ... the appearance of the boxes, not in the cab of the vehicle but in the covered bed of the pickup truck ... [and] the defendant's apologies for some

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