The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
09-1313
STATE OF LOUISIANA
VERSUS
ROBERT ALLEN SNELLING
**********
APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. 391-08
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE
**********
SHANNON J. GREMILLION
JUDGE
**********
Court composed of Oswald A. Decuir, James T. Genovese, and Shannon J.
Gremillion, Judges.
Genovese, J., concurs in the result.
CONVICTION AFFIRMED; REMANDED FOR ESTABLISHMENT OF
PAYMENT PLAN.
Bennett R. LaPoint
Assistant District Attorney
P. O. Box 1388
Jennings, LA 70546
(318) 824-1893
Counsel for Appellee:
State of Louisiana
G. Paul Marx
Attorney at Law
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 237-2537
Counsel for Defendant/Appellant:
Robert Allen Snelling
Michael Cade Cassidy
District Attorney - 31st Judicial District Court
P. O. Box 1388
Jennings, LA 70546
(337) 824-1893
Counsel for Plaintiff/Appellee:
State of Louisiana
GREMILLION, Judge.
Defendant, Robert Allen Snelling, was driving east on Interstate 10, towing
a boat between Houston, Texas, and Chattanooga, Tennessee. He was stopped for a
traffic violation in Jefferson Davis Parish by Steven Vincent, a trooper with the
Louisiana State Police, Troop D. After receiving consent to search Defendant’s
vehicle, the trooper located several pounds of marijuana hidden in the engine
compartment of the boat.
Defendant was charged by bill of information with one count of possession of
a controlled dangerous substance with intent to distribute, a violation of La.R.S.
40:966(A)(1). Defendant filed a motion to suppress evidence which was denied by
the trial court. Defendant pled guilty as charged, while reserving his right to appeal
the trial court’s denial of his motion to suppress the evidence. Defendant was
sentenced to five years at hard labor, with all but two years suspended, and three
years supervised probation upon release from custody.
Defendant now alleges that the trial court’s denial of his motion to suppress the
evidence was in error. We find that Trooper Vincent articulated sufficiently objective
facts to support his suspicions that Defendant was involved in continuing criminal
activity and the detention was of a reasonable duration in which to resolve his
suspicions. Moreover, Defendant consented to a search and his consent resolves any
issue of whether there was an illegal detention.
As a condition of probation, the trial court ordered Defendant to pay a $2,000
fine, $50 to the Drug Education and Treatment Fund, $250 to the “Southwest Crime
Lab,” and court costs. However, the trial court failed to establish a payment plan for
the payment of the fine, fees, and costs. When the fine, fees, and court costs are
1
imposed as conditions of probation, but the trial court is silent as to the mode of
payment, this court requires a specific payment plan be established. See State v.
Wagner, 07-127 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203 and 07-128 (La.App. 3 Cir.
11/5/08), 996 So.2d 1208. Therefore, we remand this case to the trial court for
establishment of a payment plan for the fine, fees, and court costs. We note that the
plan may either be determined by the trial court or by Probation and Parole, with
approval by the trial court. See State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949
So.2d 597.
ASSIGNMENT OF ERROR
Defendant asserts in his lone assignment of error that the trial court erred when
it denied his motion to suppress the evidence. Defendant argues that the trooper’s
traffic stop was a pretext to search for drugs, that once the traffic stop was resolved
the trooper did not have additional reasonable suspicion of continuing criminal
activity such that allowed further detention, and that there was no valid consent to
search the boat. Therefore, for these reasons, the search of the boat was illegal, and
the evidence should have been suppressed.
The state bears the burden of proof when a defendant files a
motion to suppress evidence obtained without a warrant. La. C. Cr. P.
art. 703(D). The entire record is reviewable for determining the
correctness of a ruling on a motion to suppress. A trial court’s denial of
a motion to suppress is afforded great weight and will not be set aside
unless a preponderance of the evidence clearly favors suppression. State
v. Pena, 43,321 (La.App. 2d Cir.7/30/08), 988 So.2d 841.
The authority and limits of the Fourth Amendment apply to
investigative stops of vehicles. The stopping of a vehicle and the
detention of its occupants is a seizure within the meaning of the Fourth
Amendment. State v. Pena, supra. The standard for evaluating a
challenge to a routine warrantless stop for violating traffic laws is the
two-step formula articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968); State v. Pena, supra. The court must determine
whether the officer’s action was justified at its inception, and whether
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it was reasonably related in scope to the circumstances which justified
the interference in the first place. Terry v. Ohio, supra; State v. Pena,
supra.
For a traffic stop to be justified at its inception, an officer must
have an objectively reasonable suspicion that some sort of illegal
activity, such as a traffic violation, occurred or is about to occur, before
stopping the vehicle. State v. Pena, supra. When determining whether
an investigatory stop was justified by reasonable suspicion, a reviewing
court must consider the totality of the circumstances, giving deference
to the inferences and deductions of a trained police officer. The
determination of reasonable suspicion for an investigatory stop, or
probable cause for an arrest, does not rest on the officers’ subjective
beliefs or attitudes, but turns on a completely objective evaluation of all
the circumstances known to the officer at the time of the challenged
action. State v. Pena, supra.
State v. Sera, 43,704, pp. 5-6 (La.App. 2 Cir. 10/29/08), 997 So.2d 707, 710-11.
At the suppression hearing, Trooper Vincent testified as follows: On the night
of May 11, 2008, a few minutes before midnight, he was patrolling Interstate 10 in
Jefferson Davis Parish, traveling east, when he observed a Chevrolet Tahoe pulling
a trailer and boat also traveling east. He noticed that the trailer did not have a license
plate. As he watched the vehicle, he saw the vehicle drift right of the fog line for
about ten feet.
Trooper Vincent activated his lights and the vehicle immediately pulled over.
Trooper Vincent testified that as soon as he activated the signal, the on-board camera
turned on automatically. He said Defendant provided him with a valid Tennessee
driver’s license. Trooper Vincent advised Defendant he was being stopped because
he had no license plate on his trailer and because of the “lane usage violation.”
Defendant told Trooper Vincent the trailer was registered in Tennessee and that a
plate was not required there, which, according to Trooper Vincent, was correct.
Defendant told Trooper Vincent that he was on his way to Tennessee to visit his
mother for Mother’s Day. He said that he owned a trucking business in Houston.
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When Trooper Vincent asked him for his Houston address, “he got nervous, and he
said, ‘huh, I don’t know, off some interstate highway. I paid cash for it.’” Trooper
Vincent said Defendant told him that he owned two houses, one in Houston and one
in Tennessee, and his driver’s license had his Tennessee address.
Trooper Vincent testified that Defendant was acting very nervous. “His carotid
artery was pulsating. His–he kept grooming his hair, rubbing his hair, scratching his
head, moving around.” Moreover, according to Trooper Vincent, Defendant would
not maintain eye contact. Trooper Vincent said he ran a quick check on Defendant’s
driver’s license and found that he had a domestic abuse charge several years ago, but
there was no drug activity on his record. However, he decided he was going to ask
for consent to search and while he was sitting in his vehicle he filled out a consent
form for Defendant to sign. Trooper Vincent stated he made this decision based on
the fact Defendant was so nervous that “[h]is hands were shaking.” Trooper Vincent
further thought it was suspicious that Defendant was traveling from Houston to
Chattanooga, towing a boat, to see his mother when he would arrive the day after
Mother’s Day.
Trooper Vincent stated that, as he was filling out the consent form, two
troopers arrived as back-up. When Trooper Vincent presented the consent form to
Defendant, “[h]e waived his hands in the air and said ‘I have no problem with that,’”
and signed the form. Trooper Vincent and another trooper searched the vehicle first,
then moved to the boat. Once inside the boat, they could smell a strong odor of
marijuana from two vents in the engine compartment. Subsequently, they located
several pounds of marijuana.
4
After hearing the trooper’s testimony and reviewing the video, the trial court
rendered its decision. Denying the motion to suppress the evidence, the trial court
stated:
All right. The Court, as I stated previously, has looked at the
video in–in detail. The Court finds that the video was not of very good
quality. I tried to turn it up as loud as I could and I was not able to hear
much of the audio on that video.
Now, let’s talk about was there probable cause for the stop.
There’s probable cause for the stop. He had the–no license tag, so the
officer had the right to stop him. The Court finds that–I’m not going to
follow Vaughn in this matter. I’m going to follow the Third Circuit that
affirmed the case here and find that there is probable cause for the
improper lane usage. The motion to suppress is not to decide whether or
not he’s guilty of improper lane usage. It’s only whether or not there’s
probable cause.
The next thing that we had to do is was he unreasonably detained?
The officer was doing his job asking the right questions over the length
of time. Now, it all gets back to the officer’s testimony. I’m going to
state for the record that I found Officer Vincent to be very credible.
There was a lot of conversations with the defendant that were not on the
videotape that the officer referred to, and I’m going to rely on the
officer’s impression and find that there was reasonable suspicion for him
to detain the defendant as he did. The defendant was presented a consent
to search, which the officer testified to that he went over the rights that
the individual had to sign or not sign the consent to search. It was not
contradicted, and it was filed into the record, and, therefore, the Court’s
going to find that the consent to search was knowingly and intelligently
done, and that based on that, the Court is going to deny the motion to
suppress.
TRAFFIC STOP
Defendant asserts in brief that the traffic stop was in fact a random stop solely
for the purpose of looking for contraband. He argues that “[t]here is nothing in
touching the fog line a single time which provides a basis for any suspicion of drug
possession, and authorizing this kind of stop means that any motorist may be stopped
at any time for no reason.” At the hearing, Trooper Vincent testified that the right
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side tires crossed over the fog line for about a distance of ten feet, one time. He
testified that, in his opinion, this was sufficient to establish a traffic violation.
In support of his argument that the stop was a pretext for looking for drugs,
Defendant cites State v. Vaughn, 448 So.2d 915 (La.App. 3 Cir. 1984), wherein this
court reversed the trial court’s denial of the defendant’s motion to suppress the
evidence based on a very similar factual scenario as the present case. This court
stated:
It is the opinion of this Court that the defendant’s actions crossing
six inches over the center line and traveling thus for approximately ten
feet, even when coupled with the observation of a vehicle swaying
within its own lane, does not per se present sufficient facts to establish
the requisite reasonable cause which is necessary before a police officer
may legally stop a motorist; particularly so, when the police officer
followed the defendant for only one and one-half blocks, and further,
when defendant’s driving presented no evidence of danger to himself or
to others.
Id. at 916.
However, in State v. Waters, 00-356 (La. 3/12/01), 780 So.2d 1053, the
Louisiana Supreme Court discussed a first circuit case wherein the court reversed the
trial court’s denial of a motion to suppress the evidence. The contraband was
discovered during a traffic stop initiated after the police officer observed defendant’s
vehicle veering to the right and making a single contact with the fog line on the side
of the road. See State v. Waters, 99-407 (La.App. 1 Cir. 11/5/99), 751 So.2d 290,
which relied on this court’s holding in Vaughn, 448 So.2d 915. The supreme court,
after discussing the United States Supreme Court’s discussion and holding in Whren
v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996), stated; “Although they may
serve, and may often appear intended to serve, as the prelude to the investigation of
much more serious offenses, even relatively minor traffic violations provide an
6
objective basis for lawfully detaining the vehicle and its occupants.” Waters, 780 at
1056. The supreme court went on to state:
In Whren, the Supreme Court expressly addressed concerns that
its objective standard for determining the reasonableness of vehicular
stops based on traffic infractions would throw open wide the door to the
use of myriad traffic regulations by the police “to single out almost
whomever they wish for a stop.” Whren, 517 U.S. at 818, 116 S.Ct. at
1777. “[W]e know of no principle,” the Court observed, “that would
allow us to decide at what point a code of law becomes so expansive and
so commonly violated that infraction itself can no longer be the ordinary
measure of the lawfulness of enforcement.” Id. We therefore find the
violation in the present case no more hypothetical or tenuous than the
offense for which the police stopped a second vehicle in United States
v. Smith after observing an air freshener hanging from the vehicle’s rear
view mirror in apparent violation of state law prohibiting material
obstructions between the driver and the windshield, [I]d., 80 F.3d at 219,
or the violations in United States v. Williams, 106 F.3d 1362, 1364 (7th
Cir.1997), in which the police officer observed the defendant’s vehicle
signal a left turn 30 feet from an intersection instead of the 100 feet
required by law, and then stop slightly forward of the stop sign at the
intersection, again in violation of state law which required a stop at a
point “nearest the intersecting roadway. . . .” Federal and state
jurisprudence in this area makes plain that the objective standard of
Whren “is indifferent to the relatively minor nature of the traffic
offense.” Williams, 106 F.3d at 1365.
Moreover, even if this Court were inclined under other
circumstances to adopt a threshold approach to Whren below which an
observed traffic violation appears too slight or technical to afford a
reasonable basis for interfering with a vehicle’s freedom of movement,
we agree with the trial court in this case that, giving due deference to
Corporal Magee’s experience in the field, the sudden and inexplicable
veering of the Toyota to the fog line at that hour of the morning
provided the officer with a “‘minimal level of objective justification . .
. .’” required for an investigatory stop. State v. Huntley, 97-0965, p. 3
(La.3/13/98), 708 So.2d 1048, 1049 (quoting United States v. Sokolow,
490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)). A vehicle
need not leave its lane to provide reasonable suspicion by reason of its
erratic movements that the driver may be impaired or intoxicated. See
State v. Moran, 667 P.2d 734, 735 (Ak.App.1983) (observation of
defendant’s vehicle as it touched the center line of a divided highway
and then drifted over to the right hand fog line three times within ½
mile provided reasonable suspicion driver was impaired or intoxicated).
Id. at 1057.
7
Considering the above jurisprudence, in the current case, Trooper Vincent
articulated a valid and objective basis for lawfully pulling over Defendant’s vehicle,
however minor the infraction may have been. See also, State v. Lewis, 07-1183
(La.App. 3 Cir. 4/2/08), 980 So.2d 251.
DETENTION
Defendant next argues that once the issue of the lack of a license plate on the
trailer was resolved and Defendant was found not to have a criminal history other
than a domestic abuse conviction in 2000, Defendant should have been cited for
improper lane usage and allowed to continue on his way.
Louisiana Code of Criminal Procedure Article 215.1(D), in pertinent part,
provides:
During detention of an alleged violator of any provision of the
motor vehicle laws of this state, an officer may not detain a motorist for
a period of time longer than reasonably necessary to complete the
investigation of the violation and issuance of a citation for the violation,
absent reasonable suspicion of additional criminal activity.
This court discussed “reasonable suspicion” developed during a traffic stop in
State v. Morris, 03-269, p.10 (La.App. 3 Cir. 9/10/03), 854 So.2d 989, 996, writ
denied, 03-2853 (La. 10/15/03), 855 So.2d 743, as follows:
The reasonable suspicion referenced in La.Code Crim.P. art.
215.1(A) is something less than probable cause and something more
than a hunch. State v. Flowers, 441 So.2d 707 (La.1983), cert. denied,
466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984). To determine the
existence of reasonable suspicion, the totality of the circumstances faced
by the law enforcement officers must be considered and the officers
must be able to articulate facts that in conjunction with their inferences
and the officers’ experience give rise to reasonable suspicion. Id.
Trooper Vincent testified that Defendant’s nervous behavior and the fact that
he was towing a boat to Tennessee to see his mother for Mother’s Day, which was
minutes from being over, made him suspect that Defendant may be involved in
8
additional criminal activity. He stated that Defendant kept running his hands through
his hair, scratching his head, moving around, would not maintain eye contact, and his
carotid artery was pulsating. He further testified that when he asked Defendant for
his address in Houston, Defendant could not tell him, stating only that he paid cash
for his house and had a receipt.
Defendant argues that a review of the video tape of the stop contradicts the
trooper’s testimony that he exhibited nervous behavior. The video began recording
at approximately 11:31 p.m. At approximately 11:32, Trooper Vincent called out for
Defendant to exit his vehicle. The two stood in front of the trooper’s unit for a
minute or two and talked. While the audio was bad, the visual was good enough to
see that Defendant spoke directly to Trooper Vincent and did not appear to avoid eye
contact. Trooper Vincent walked around the boat to check the license plate on
Defendant’s vehicle and at this time, Defendant scratched his head. Trooper Vincent
returned and talked to Defendant again for a minute or two, during which time
Defendant scratched his head. Approximately five or six minutes into the video tape,
both men walked back to Defendant’s car and then returned to stand in front of
Trooper Vincent’s unit. Trooper Vincent was holding some papers. Trooper Vincent
was heard mentioning drugs. Defendant scratched his head again after Trooper
Vincent walked back to Defendant’s car again for an unknown reason. Trooper
Vincent saw him scratch his head only once. Defendant never ran his hands through
his hair. As Trooper Vincent sat in his unit checking Defendant’s license plate and
driver’s license, Defendant once rubbed his neck. He did however rub his nose five
times during the course of the stop prior to signing the consent form for the search.
Otherwise, Defendant stood patiently in front of the trooper’s unit for several
9
minutes, watching either Trooper Vincent or traffic as Trooper Vincent filled out
paperwork and communicated with dispatch. When the second trooper arrived,
Defendant talked with him, smiling and laughing as Trooper Vincent sat in his unit.
Defendant did become visibly nervous as Trooper Vincent asked him if he had drugs
in the vehicle after the trooper showed him the consent form.
As noted, the audio on the video tape was bad. Most of the conversation was
incomprehensible. What Defendant said when asked for his address was inaudible.
The only conversation that was discernible to some degree was regarding whether
Defendant had drugs at the beginning of the tape and then just before he signed the
consent form, and about Defendant visiting his mother the day after Mother’s Day.
Trooper Vincent presented Defendant with the consent to search form at
approximately 11:48 p.m., sixteen minutes after the initial stop.
While discussing whether an investigatory traffic stop became an illegal
restraint of a person’s liberty, the Louisiana Supreme Court stated:
“[C]ourts have been unable to develop a bright-line test to determine
when police-citizen encounters exceed the bounds of mere Terry stops.”
United States v. Ienco, 182 F.3d 517, 524-25 (7th Cir.1999). Because
“[t]here is no scientifically precise formula that enables courts to
distinguish between valid investigatory stops . . . and other detentions
that the law deems sufficiently coercive to require probable cause,”
United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994), a court
inquiring into the nature of a forcible detention must examine “whether
the police diligently pursued a means of investigation that was likely to
confirm or dispel their suspicions quickly, during which time it was
necessary to detain the defendant.” United States v. Sharpe, 470 U.S.
675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985) (citations
omitted). A court making this assessment “should take care to consider
whether the police are acting in a swiftly developing situation, and in
such cases the court should not indulge in unrealistic second-guessing.”
Id.
State v. Miller, 00-1657, p. 3 (La. 10/26/01), 798 So.2d 947, 949.
10
In Miller, because the nervous driver did not consent to a search of the vehicle,
the officer held her for fifty-four minutes awaiting a drug sniffing dog. The supreme
court did not find the wait imposed in Miller as being excessive, noting:
The trooper immediately reported his deepening suspicions and Officer
Thigpen, at home when he received his dispatcher’s call, responded
promptly, arriving with his dog on the scene 34 minutes later. The stop
was approaching an hour at this point but its duration reasonably
correlated with the escalating level of suspicion as the officers pursued
a means of investigation likely to confirm or dispel the trooper’s
suspicions without unnecessary delay.
Id. at 950.
In the current case, the video does not suggest that Defendant was nervous.
Even if he was nervous, in State v. Alexander, 450 So.2d 61 (La.App. 3 Cir. 1984),
this court stated that nervousness, by itself, was not sufficient to justify a continuing
investigation once the reason for the initial stop was resolved, but was a factor adding
to a developing reasonable suspicion. During cross-examination, Trooper Vincent
admitted that he did not find it unusual for someone to not be able to visit their mother
for Mother’s Day actually on Mother’s Day. Nothing more suspicious occurred.
Defendant’s license plate and driver’s license and the trailer registration were all in
order and validated through dispatch. Defendant had a reasonable explanation of
where he was from and where he was going. The only criminal matter on Defendant’s
record was a domestic abuse offense in 2000.
However, most of the questions and answers could not be heard on the video,
nor the tone of Defendant’s voice. Only Trooper Vincent could see directly into
Defendant’s eyes, and see whether Defendant’s carotid artery was pulsating. Further,
it was only sixteen minutes from the initial stop until Defendant signed a consent form,
allowing the troopers to search. More problematic to Defendant’s case is the fact that
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he freely consented to the search. An investigating officer does not need any degree
of reasonable suspicion to ask for and receive permission to search. State v. Strange,
04-273 (La. 5/14/04), 876 So.2d 39.
CONSENT TO SEARCH
Defendant does not contest the validity of the consent to search itself. The only
issue Defendant raises concerning the consent is whether he consented to the search
of the boat when he consented to the search of the vehicle. The consent to search form
specifically listed only the 1999 Chevrolet Tahoe. Defendant asserts that he “never
consented to the search of the boat and the form cannot support any claim that he did
so.”
It is well settled that a warrantless search conducted pursuant to a
valid consent is permitted by the Louisiana and United States
constitutions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041,
36 L.Ed.2d 854 (1973); State v. Bodley, 394 So.2d 584 (La.1981); State
v. Murphy, 465 So.2d 811 (La.App. 2d Cir.1985). A consent is valid
when it is freely and voluntarily given by a person with common
authority or other sufficient relationship to the premises or effects sought
to be inspected. Bodley, supra; State v. Owens, 480 So.2d 826 (La.App.
2d Cir.1985), writ denied, 486 So.2d 748, cert. denied, 479 U.S. 840,
107 S.Ct. 145, 93 L.Ed.2d 87 (1986). While a valid consent search is a
recognized exception to the warrant requirement, the burden is on the
state to prove the consent was freely and voluntarily given.
Voluntariness is a question for the trier of fact to be determined by the
totality of the circumstances. The trial court’s finding is to be given great
weight upon appellate review. State v. Edwards, 434 So.2d 395
(La.1983); State v. Brown, 478 So.2d 600 (La.App. 2d Cir.1985).
State v. Bostic, 26,000, p. 6 (La.App. 2 Cir. 5/4/94), 637 So.2d 591, 595-96, writ
denied, 94-1476 (La. 10/14/94), 643 So.2d 159. Moreover,
[W]hen officers rely upon consent to justify a warrantless search, they
have no more authority than they have been given by the consent.
Therefore, any search beyond the permitted intrusion invalidates the
voluntariness of the consent given to the extent that the search exceeds
the parameters for which the permission was granted.
State v. Malone, 39,996, p.6 (La.App. 2 Cir. 9/23/05), 912 So.2d 394, 398.
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In brief, the State argues that Defendant’s assertion that he did not consent to
the search of the boat was not supported by “any specific authority” and that “once
consent to search is granted to the police, it is generally given a broad interpretation
in scope.” The State cites Sera, 997 So.2d 707, in support of its assertion, stating that
in Sera, “[t]he Court found that consent to search included all containers found in the
truck and trailer. (emphasis added).” In Sera, the defendant was riding with his
cousin, who was driving an eighteen-wheeler. The rig was stopped for a traffic
violation and after being given consent to search the tractor, or cab, by the driver, the
police found the defendant’s bag in the sleeper compartment of the tractor which
contained three kilos of cocaine. The issue was whether consent to search the tractor
extended to the luggage of a passenger located in the tractor. After analysis of the
facts of the case, the second circuit stated only that the driver of the rig had the
authority to consent to a search, which “included all containers in the truck [tractor]
and trailer.” Id. at 717.
However, the State further supports the “broad interpretation” of a consent in
the current case by comparison to consent given to the search of a residence, wherein
the “residence also encompasses related structures such as a playhouse in the yard.
See State v. Wagster, 361 So.2d 849 (La. 1978).” In Wagster, the issue was whether
the father and owner of the residence could consent to the search of his son’s van,
which was parked in the backyard. The father testified that, when asked, he gave
consent to search his van in the backyard, but not his son’s van. The officer testified
that he obtained consent to search the son’s van when he talked to the father. The
supreme court held, “[C]onsent to search a residence should, under ordinary
circumstances, apply to structure appurtenant thereto used in connection with the main
13
building, such as a van without wheels resting on blocks, and used as a playhouse as
in the case at bar.” Id. at 855.
In a more recent case, State v. Irby, 93-2220 (La.App. 4 Cir. 2/4/94), 632 So.2d
801, 804, writ denied, 94-580 (La. 4/29/94), 637 So.2d 461, the fourth circuit
discussed whether the language, “my residence or other real estate,” contained in a
consent to search form included a shed outside the house, as follows:
In support, it [the State] cites State v. Roach, 322 So.2d 222 (La.1975),
and State v. Brouillette, 465 So.2d 124 (La.App. 4th Cir.1985), where
both courts held that the term “premises” used in a search warrant
affidavit could be reasonably construed to include the house, the garage,
and “other outbuildings which one normally associates with and includes
in the word ‘premises’”, Brouillette, at 126, or “any other outbuildings
within close proximity of the house proper that one normally associates
with and includes within the word ‘house’ or ‘premises’”, Roach, at 226.
In United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94
L.Ed.2d 326 (1987), the Supreme Court set forth four factors to be used
to determine the “curtilage” of a house: “the proximity of the area
claimed to be curtilage to the home, whether the area is included within
an enclosure surrounding the home, the nature of the uses to which the
area is put, and the steps taken by the resident to protect the area from
observation by people passing by.”
....
Taking the Dunn factors, it appears that the shed would fall within
the “curtilage” of the residence. If the only thing this court had to
consider was the consent form, the search of the shed would probably
have been authorized by the form. Likewise, if the officers had gotten a
search warrant for the “premises”, the shed probably would have been
included within its scope.
In the current case, the consent form Defendant signed stated that he “hereby
voluntarily authorize TPR Steven Vincent of the Louisiana Office of State Police to
search 1999 Chevrolet Tahoe 400 Tan TN Titan 9970 and its contents, which are
owned or controlled by me. . . .” The boat, secured to the trailer attached to the truck,
would qualify as “curtilage” in the same sense as an outbuilding “within close
14
proximity of the house proper that one normally associates with and includes within
the word ‘house’ or ‘premises.’” State v. Roach, 322 So.2d at 226.
In State v. Pigford, 05-477 (La. 2/22/06), 922 So.2d 517, the supreme court
addressed an issue of whether the driver of an eighteen-wheeler rig had dominion and
control over the drugs found in the trailer such that allowed him to be convicted of the
offense of possession with intent to distribute the drugs. In this case, the issue was not
whether the defendant’s consent to search the tractor extended to the trailer
compartment—the defendant had refused the police consent to search the trailer—but
whether the drugs could be imputed to him by virtue of the fact he operated the tractor.
Noting that private vehicle case law regarding constructive possession of drugs cannot
necessarily be applied to drugs found on commercial transport, the supreme court
nonetheless stated:
Defendant’s dominion and control over the trailer and access to its
contents did not alone establish his guilty knowledge of the marijuana
bundle placed on top of the grape pallets. See State v. Major, 03-3522
at 8-9 (La.12/1/04), 888 So.2d 798, 803. Nevertheless, guilty knowledge,
an essential component of any showing that a defendant has constructive
possession of contraband, i.e., dominion and control over it although the
contraband is not in his actual possession, State v. Bell, 566 So.2d 959,
960 (La.1990); State v. Sweeney, 443 So.2d 522, 528 (La.1983), may be
inferred from the circumstances of the transaction. Major, 03-3522 at
8-9, 888 So.2d at 803; State v. Goiner, 410 So.2d 1085, 1087 (La.1982).
Id. at 521.
In the current case, the trooper testified Defendant’s behavior gave him
reasonable suspicion that he was involved in continuing criminal activity. Interstate
10 is a well-known drug route east, the direction Defendant was traveling. When
asked, Defendant told the trooper that he was the owner of the trailer and the boat;
therefore, he had dominion and control. We find that Trooper Vincent would have
15
been remiss to have not searched the boat, which Defendant admitted he had dominion
and control over by virtue of ownership.
Finally, there was no evidence that Defendant attempted to restrict the search,
or objected when the troopers approached and then searched the boat. Consent can be
limited and revoked at any time, even after a search has commenced. Malone, 912
So.2d 394. See also, State v. Rawls, 552 So.2d 764 (La.App. 1 Cir. 1989), wherein the
first circuit noted that because neither the driver nor the defendant, who was the
passenger, objected to the search of the passenger’s luggage in the truck, the trial court
was correct in denying the defendant’s motion to suppress the evidence that was
located in his luggage.
When Defendant gave consent to search the vehicle, the consent extended to
the boat, which was attached to the vehicle. As in a shed, which is “curtilage” because
of its proximity to a house and under the dominion and control of the owner of the
residence, consent to search the boat firmly attached to the vehicle and under the
dominion and control of Defendant, was within the scope of the consent to search the
vehicle.
CONCLUSION
Ultimately, this matter turns on the simple fact that Defendant gave consent to
search the vehicle. Considering Defendant’s consent to search, we affirm Defendant’s
conviction. However, this case is remanded to the trial court for establishment of
payment plans for the fine, fees, and court costs, noting that the plans may either be
determined by the trial court or by Probation and Parole, with approval by the trial
court.
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CONVICTION AFFIRMED; REMANDED FOR ESTABLISHMENT OF
PAYMENT PLAN.
17