State v. Walker

853 So. 2d 61, 2003 WL 21766660
Louisiana Court of Appeal·Decided July 29, 2003·No. 03-KA-188·Published·Cited by 17 cases

Opinion

853 So.2d 61 (2003)

STATE of Louisiana
v.
Rodney WALKER.

No. 03-KA-188.

Court of Appeal of Louisiana, Fifth Circuit.

July 29, 2003.

*62 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Nancy A. Miller, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.

*63 A. Bruce Netterville, Gretna, LA, for Defendant-Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.

EDWARD A. DUFRESNE, JR., Chief Judge.

Defendant, Rodney Walker, appeals his conviction of possession of cocaine. For the reasons which follow, we affirm his conviction and sentence.

The Jefferson Parish District Attorney filed a bill of information charging defendant with possession of cocaine, a violation of LSA-R.S. 40:967(C). Defendant pled not guilty and subsequently filed a motion to suppress evidence, which was heard and denied by the trial judge. The matter thereafter proceeded to trial before a six person jury which found defendant guilty as charged.

Defendant filed a motion for new trial which was heard and denied by the trial court. After waiving sentencing delays, the court sentenced defendant to four years at hard labor with credit for time served.

The state then filed a multiple offender bill of information alleging defendant to be a second felony offender. Defendant admitted the allegations of the multiple bill and was sentenced, in accordance with the plea agreement, to five years of imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant now appeals.

FACTS

On the night of December 20, 2000, Deputy Kurt Sanderson, of the Jefferson Parish Sheriff's Office, was dispatched to 6160 August Street in reference to a 911 hang up call. Upon arriving at the location, Deputy Sanderson observed two vehicles in the driveway of the home, one a Chevy Lumina and the other, a compact car. As he exited his vehicle, the Lumina backed out of the driveway with its lights off and rapidly accelerated from the location. Deputy Sanderson was told by a woman at the scene that the driver of the Lumina was the "dope man" and possessed crack cocaine inside of his car. Upon hearing that information, Deputy Sanderson notified his backup officer, Deputy Ricky Boudreaux, who was en route to the area.

Deputy Boudreaux testified that, within 10 to 20 seconds of receiving the call, he stopped the vehicle at the intersection of August and Ames. Boudreaux testified that the vehicle did not have functioning headlights when he performed the stop. After making the stop, Boudreaux ordered defendant out of the vehicle and conducted a pat down search and field interview of defendant. During this time, the driver's door of the vehicle was open, and the officer observed, in plain view, a small off-white, rock-like substance on the floorboard of the vehicle. The officer seized the substance. Subsequent tests revealed the rock to be crack cocaine.

Boudreaux then called for a K-9 unit to search the car for possible additional narcotics. Deputy Curtis Roy arrived at the scene with a K-9 dog and a search of the vehicle was conducted. As a result of the search, Boudreaux located and seized a bag containing small rocks of what appeared to be crack cocaine from the center console of defendant's vehicle. Subsequent testing revealed that these rocks were also crack cocaine.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant argues that the trial court erred in denying his motion to suppress evidence.

*64 The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1, as well as by both the federal and state jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Hicks, 98-1231 (La.App. 5 Cir. 3/30/99), 733 So.2d 652. Reasonable suspicion for an investigatory stop is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable suspicion to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Hicks, 733 So.2d at 654-655.

In the present case, defendant asserts that the stop of the vehicle was illegal because the officers lacked reasonable suspicion of criminal activity. He specifically asserts that the sheriff's deputies had "nothing upon which to suspect illegality" and the only information concerning defendant's suspected possession of cocaine came from an unidentified woman. Defendant contends that the tip from the unidentified woman failed to give the investigating officer any information about the identity or address of the driver or any information concerning the make, model, and color of the automobile. We find no merit to this argument. In fact, the issue of whether the citizen's complaint provided reasonable suspicion for the stop is of no consequence because the officers were justified in stopping defendant on other grounds.

The evidence, at both the suppression hearing and the trial, was clear that defendant was driving the vehicle at night without headlights. Driving at night without lighted headlights is a violation of LSA-R.S. 32:301, which requires that every vehicle upon a highway within this state shall display lighted lamps and illuminating devices at any time between sunset and sunrise. LSA-R.S. 32:301(1). It has been held that a traffic violation constitutes reasonable cause for a stop. State v. Curtis, 98-1283 (La.App. 5 Cir. 6/1/99), 738 So.2d 657; State v. Richards, 97-1182 (La.App. 5 Cir. 4/15/98), 713 So.2d 514, writ denied, 98-1452 (La.10/9/98), 726 So.2d 27. Therefore, the police clearly had reasonable cause to stop defendant's vehicle because it was being operated without headlights as required by statute. Additionally, Deputy Boudreaux had the authority to order the defendant out of the vehicle pending the completion of the traffic stop. State v. Curtis, 738 So.2d at 660.

After defendant exited his vehicle, Deputy Boudreaux performed a pat down of defendant and conducted a field interview. Deputy Boudreaux then looked through the open driver's side door and observed a small off-white, rock-like substance. Suspecting the item was crack cocaine, Deputy Boudreaux collected the item. Under the plain view exception to the warrant requirement, if the police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. See, Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Stamp, 98-193 (La.App. 5 Cir. 7/28/98), *65 718 So.2d 531, 533; S

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