State v. Triche

848 So. 2d 80, 2003 WL 21229154
CourtLouisiana Court of Appeal
DecidedMay 28, 2003
Docket03-KA-149
StatusPublished
Cited by23 cases

This text of 848 So. 2d 80 (State v. Triche) 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. Triche, 848 So. 2d 80, 2003 WL 21229154 (La. Ct. App. 2003).

Opinion

848 So.2d 80 (2003)

STATE of Louisiana
v.
Eric H. TRICHE.

No. 03-KA-149.

Court of Appeal of Louisiana, Fifth Circuit.

May 28, 2003.

*82 Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Donald A. Rowan, Jr., Assistant District Attorneys, Gretna, LA, for State.

Prentice L. White, Baton Rouge, LA, for Defendant-Appellant.

Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.

CLARENCE E. McMANUS, Judge.

At issue in this appeal is whether the trial court properly denied defendant's motion to suppress. For the following reasons, we affirm but remand this case for resentencing.

STATEMENT OF THE CASE

On May 4, 2001, the Jefferson Parish District Attorney filed a bill of information charging defendant, Eric Triche, with possession with intent to distribute marijuana. La.R.S. 40:966 A. Defendant was arraigned on June 28, 2001, and pled not guilty.

Defendant filed a Motion to Suppress the Evidence which was denied. The defendant objected to the ruling, and noticed his intent to apply for supervisory writs. However, there is no record that defendant *83 filed a writ application in this Court. The trial was completed on October 25, 2001, and the jury returned a verdict of guilty as charged.

On November 9, 2001, the trial court sentenced defendant to 15 years at hard labor. The same day, the State filed a habitual offender bill of information, alleging that defendant was a second felony offender. A hearing was held on February 1, 2002, and the court found defendant to be a second felony offender. On March 1, 2002, the trial court imposed an enhanced sentence of 20 years at hard labor, without benefit of parole, probation, or suspension of sentence.

Defendant failed to make a timely motion for appeal. On November 18, 2002, he filed a timely Uniform Application for Post-conviction Relief, requesting reinstatement of his appeal rights. On November 22, 2002, the trial court granted defendant an out-of-time appeal.

FACTS

On September 30, 2000, Jefferson Parish narcotics agents John Pacaccio and Dennis Lynch conducted surveillance outside of the Red Lobster Restaurant at Lakeside Shopping Center, on Causeway Boulevard in Metairie. Pacaccio had received information from a "concerned citizen" that a black male employee of the restaurant (who went by the nickname "Red") was selling marijuana from his car. The car was described as a tan Chevrolet Lumina, which was alleged to be parked at the restaurant. The caller supplied officers with the car's license plate number. Pacaccio ran the number on the police computer, and found that the Lumina was registered to defendant, Eric Triche. Lynch and Pacaccio arrived at the restaurant's parking lot between 8 and 9 p.m. They saw the tan Lumina parked there. The officers were in separate cars and parked in different positions, so that they could see the Lumina from each vantage point. The officers first observed defendant exit the restaurant, dressed in a Red Lobster employee uniform. He walked to the Lumina, sat in the driver's seat, and stayed there for several minutes. He appeared to search for something in the back seat area of the car. He then left the car and returned to the restaurant.

Thirty to forty five minutes later, he exited the restaurant with one of his co-workers. The two men got into defendant's car. Defendant appeared to show his companion the car's stereo system. He turned on the radio, and played the music loudly. Pacaccio testified that defendant appeared to be looking around for something in the passenger area. The two men got out of the car and went back in the restaurant. At about 11:00 p.m., a man driving a blue Saturn automobile entered the parking lot, and parked alongside defendant's car. This man went into the restaurant, then came back outside with defendant. Defendant and the unknown subject went to defendant's car and opened the trunk. Defendant removed a brown bag from inside, and tried to give it to the driver of the Saturn. Defendant then closed the trunk. The second man took the bag to the Saturn, opened the trunk, and put the bag inside. Pacaccio testified that, based on the anonymous tip and his experience in narcotics work, he believed a drug transaction had taken place.

Pacaccio and Lynch moved from their position then parked behind the Lumina and the Saturn, and conducted what Pacaccio characterized as an investigatory stop. The officers' objective was to determine what was in the brown bag. Lynch detained defendant. Pacaccio asked the Saturn's driver for permission to search his car. The subject gave his verbal consent for a search. Upon opening the trunk *84 of the Saturn, Pacaccio discovered a brown Dillard's department store shopping bag. The bag contained a white rag and a bag of green vegetable material. Pacaccio placed the driver of the Saturn under arrest.

Pacaccio asked defendant for permission to search the Lumina, and defendant allegedly consented. The officers opened the trunk of defendant's car, and found a camera case. The case contained green vegetable material. Pacaccio searched inside of the car, and found a compact disk case in the rear passenger area. The case contained loose green vegetable matter, along with several small plastic bags with the residue of green vegetable matter. Pacaccio searched the passenger area and located some smoked or burned hand-rolled cigarettes. The officers placed defendant under arrest. Following the arrest, the officers found $122 on defendant's person. Daniel Waguespack, a forensic scientist with the Jefferson Parish Crime Lab, testified that he analyzed the green vegetable matter seized in the instant case. All of it tested positive for marijuana.

DISCUSSION

Defendant argues the trial court erred in denying the motion to suppress because the evidence seized from the search was obtained after the arresting officers illegally detained him and that the search was conducted without valid consent from him. Defendant contends that the trial court erred in denying his motion to suppress the evidence. He maintains that the officers did not have reasonable suspicion to support the initial stop, and that the officers did not obtain valid consent to search either his own car, or that of the second subject. In this case, police officers obtained the information from an anonymous phone call.

The Fourth Amendment to the United States Constitution and Article I, Section V of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Mercante, 02 712, p. 4 (La.App. 5 Cir. 12/30/02), 836 So.2d 596, 599. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal behavior is recognized by state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, supra; State v. Williams, 98-1006, p. 9 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 70 writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118. The Terry standard is codified in La.-C.Cr.P. art. 215.1, which allows a police officer "to stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense" and to demand that the person identify himself and explain his actions.

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Bluebook (online)
848 So. 2d 80, 2003 WL 21229154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-triche-lactapp-2003.