State of Louisiana v. Brandon Dale Allen

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-610

STATE OF LOUISIANA

VERSUS

BRANDON DALE ALLEN

**********

APPEAL FROM THE

NINTH JUDICIAL DISTRICT COURT

PARISH OF RAPIDES, NO. 300,821

HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX

CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and

Billy Howard Ezell, Judges.

CONVICTIONS FOR POSSESSION OF COCAINE AND

POSSESSION OF HYDROCODONE AFFIRMED.

CONVICTION FOR POSSESSION OF A FIREARM BY A

CONVICTED FELON REVERSED, ORDER OF

ACQUITTAL ENTERED, AND SENTENCE VACATED.

REMANDED WITH INSTRUCTIONS.

James C. Downs

District Attorney - 9th Judicial District Court

John T. Giordano

Assistant District Attorney – 9th Judicial District Court

701 Murray Street

Alexandria, LA 71301

Telephone: (318) 473-6650

COUNSEL FOR:

Plaintiff/Appellee - State of Louisiana

Dmitrc Ian Burnes

Burnes & Burnes

711 Washington Street

Alexandria, LA 71301

Telephone: (318) 448-0482

COUNSEL FOR:

Defendant/Appellant - Brandon Dale Allen

THIBODEAUX, Chief Judge.

Defendant, Brandon Dale Allen, appeals jury verdicts convicting him of

possession of cocaine, possession of hydrocodone, and possession of a firearm by a

felon. The court sentenced him to five years on the two drug possession convictions

and ten years on the possession of a firearm by a convicted felon, all to be served

concurrently. The State then filed a habitual offender bill seeking to enhance the drug

convictions. After a hearing, the trial court sentenced Defendant to concurrent ten

year sentences on each of the drug convictions, and ten years on the firearm

conviction, to be served consecutively to the two ten year terms, for a total of twenty

years imprisonment.

Defendant also appeals the denial of his motion to suppress.

For the following reasons, we affirm the two drug possession convictions

and the denial of the motion to suppress. We reverse the conviction for possession of

a firearm by a convicted felon because of insufficient evidence to convict. We

remand for resentencing.

FACTS

On the afternoon of February 2, 2010, Corporal Glenn Hall, a patrol

officer with the Alexandria Police Department, pulled Defendant‟s car over at the

request of Detective Latisha Gaudin, an officer in the narcotic division of the

Alexandria Police Department. Detective Gaudin had been tailing Defendant‟s

vehicle in an unmarked police car. Defendant, a passenger, Troy Newton, and

Defendant‟s six-year-old son were in the car. Defendant‟s vehicle was searched, and

a small amount of cocaine was located under the driver‟s seat and a loaded handgun

was found under the backseat of the vehicle. After Defendant was transported to

police headquarters, a plastic bag was found in the backseat of the patrol car

containing several hydrocodone pills, marijuana, and two small packets of cocaine.

Upon obtaining a search warrant for Defendant‟s residence, the police found a

Styrofoam cup in the refrigerator which contained more hydrocodone pills and two

more small packets of cocaine. Defendant was arrested and charged with possession

with intent to distribute cocaine and hydrocodone and with possession of a firearm by

a convicted felon.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. There is one error patent concerning the bill of

information and several errors patent concerning Defendant‟s sentences.

(1) Failure to Vacate Original Sentences

The record indicates the court failed to vacate Defendant‟s original

sentences on his two drug offenses. For each of his convictions of possession of

cocaine and possession of hydrocodone, Defendant was originally sentenced to serve

five years to run concurrently. Defendant was subsequently adjudicated a third felony

offender and was sentenced to serve ten years on each count to run concurrently with

each other, but consecutively to any other time, including the ten-year sentence for

possession of a firearm by a convicted felon. Neither the court minutes nor the

sentencing transcript indicate the trial court vacated the two originally-imposed

sentences when it imposed the two habitual offender sentences as required by La.R.S.

15:529.1(D)(3).

This issue was before this court as an error patent in State v. Pitre, 04-

1134, pp. 4-5 (La.App. 3 Cir. 2/9/05), 893 So.2d 1009, 1012:

Additionally, the court notes that the minutes of

the habitual offender adjudication do not indicate the trial

court vacated the originally imposed sentences of seven

years on each count before imposing the habitual

offender sentences. Louisiana Revised Statutes

2

15:529.1(D)(3) requires the trial court to vacate the

previously imposed sentence prior to imposing a habitual

offender sentence. In State v. Mayer, 99-3124 (La.

3/31/00), 760 So.2d 309, however, the supreme court

found that vacation of the habitual offender sentence was

not necessary where the transcript failed to reflect the

trial court vacated the previously imposed sentence

before imposing the habitual offender sentence. The

supreme court reasoned that the substantial rights of the

defendant were protected since the commitment/minute

entry “reflect[ed] that the trial judge vacated the

defendant‟s original sentence and thereby eliminated any

possible confusion as to the terms of the defendant‟s

confinement. . . .” Id. at 310.

The present case is distinguishable since the

minute entry does not indicate that the trial court vacated

the originally imposed sentences before sentencing the

Defendant as a habitual offender. To eliminate any

possible confusion as to the terms of the Defendant‟s

confinement, this court will order the trial court to vacate

the originally imposed sentences of seven years on each

count. See State v. Mayer, 99-3124 (La.App. 3 Cir.

3/31/00), 760 So.2d 309 (citing State ex rel. Haisch v.

State, 575 So.2d 816 (La.1991)).

Consistent with Pitre, we order the trial court to vacate Defendant‟s

originally-imposed five-year sentences for his convictions of possession of cocaine

and possession of hydrocodone prior to the imposition of the habitual offender

sentences.

(2) Error in Court Minutes

Second, although the court minutes of sentencing indicate Defendant‟s

habitual offender sentences were imposed at hard labor, the sentencing transcript

indicates the court sentenced Defendant as a third felony offender to ten years on each

count of his drug possession offenses without indicating whether the sentences were

to be served at hard labor. “[W]hen the minutes and the transcript conflict, the

transcript prevails.” State v Wommack, 00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d

365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62.

The trial court is ordered to correct the sentencing minutes to reflect the

3

sentences imposed by the trial court as shown in the sentencing transcript, which did

not mention hard labor. Additionally, the court minutes should be amended to reflect

that the ten-year habitual offender sentence was imposed on each count of the drug

offenses. The court minutes state in pertinent part:

Court gives reasons and sentences the defendant as a

third felony offender: Court sentenced accused for

POSSESSION CDS II. POSSESSION CDS III. Court

sentenced accused to be committed to the Louisiana

Department of Corrections. Accused to serve 10 Year(s).

Sentence is to be served at Hard Labor. Sentence is to

run concurrent. Sentence is to run consecutive with any

other time presently serving. Sentence is also to run

consecutive with Count #3, Firearm Possession by a

Felon, in this docket number.

The transcript states in pertinent part, however, “I sentence you as a third

felony offender, on the two convictions for the Possession of CDS II, to ten years on

each account [sic].” As noted above, when there is a discrepancy, the transcript

controls. Accordingly, the trial court is ordered to correct the sentencing minutes to

reflect that the court imposed a ten-year sentence on each of Defendant‟s two drug

convictions.

INSUFFICIENCY OF THE EVIDENCE

Defendant argues that the evidence was insufficient to connect him with

the drugs and gun located in the vehicle he was driving, the drugs located in the

backseat of the police unit, or the drugs found in the refrigerator of his girlfriend‟s

house. He contends he had no knowledge of any of the drugs or of the gun.

State v. Miller, 98-1873, p. 5 (La.App. 3 Cir. 10/13/99), 746 So.2d 118,

120, writ denied, 99-3259 (La. 5/5/00), 761 So.2d 541, noted:

When the issue of sufficiency of evidence is raised

on appeal, the critical inquiry of the reviewing court is

whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

proven beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);

4

State ex rel. Graffagnino v. King, 436 So.2d 559

(La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);

State v. Moody, 393 So.2d 1212 (La.1981). The role of

the factfinder is to weigh the respective credibility of

each witness. Therefore, the appellate court should not

second guess the credibility determinations of the

factfinder beyond the sufficiency evaluations under the

Jackson standard of review. See State ex rel.

Graffagnino, 436 So.2d 559, citing State v. Richardson,

425 So.2d 1228 (La.1983).

Additionally, in State v. Ortiz, 96-1609, p. 12 (La. 10/21/97), 701 So.2d

922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352 (1998), the Louisiana Supreme

Court stated:

When circumstantial evidence is used to prove the

commission of the offense, La.R.S. 15:438 requires that

“assuming every fact to be proved that the evidence tends

to prove, in order to convict, it must exclude every

reasonable hypothesis of innocence.” This is not a

separate test to be applied when circumstantial evidence

forms the basis of a conviction; all evidence, both direct

and circumstantial must be sufficient to satisfy a rational

juror that the defendant is guilty beyond a reasonable

doubt. State v. Porretto, 468 So.2d 1142 (La.1985).

Defendant was convicted of illegally possessing cocaine, a Schedule II

drug, and hydrocodone, a Schedule III drug. La.R.S. 40:964. Louisiana Revised

Statutes 40:967(C) provides, in pertinent part, that “[i]t is unlawful for any person

knowingly or intentionally to possess a controlled dangerous substance as classified in

Schedule II unless such substance was obtained directly or pursuant to a valid

prescription or order from a practitioner[.]” Similarly, for a Schedule III drug, “[i]t is

unlawful for any person knowingly or intentionally to possess a controlled dangerous

substance as classified in Schedule III unless such substance was obtained directly or

pursuant to a valid prescription or order from a practitioner[.]” La.R.S. 40:968(C).

Finally, Defendant was convicted of possession of a firearm by a convicted felon.

A. It is unlawful for any person who has been convicted

of a crime of violence as defined in R.S. 14:2(B) which is

a felony or simple burglary, burglary of a pharmacy,

burglary of an inhabited dwelling, unauthorized entry of

an inhabited dwelling, felony illegal use of weapons or

5

dangerous instrumentalities, manufacture or possession

of a delayed action incendiary device, manufacture or

possession of a bomb, or possession of a firearm while in

the possession of or during the sale or distribution of a

controlled dangerous substance, or any violation of the

Uniform Controlled Dangerous Substances Law which is

a felony, or any crime which is defined as a sex offense

in R.S. 15:541, or any crime defined as an attempt to

commit one of the above-enumerated offenses under the

laws of this state, or who has been convicted under the

laws of any other state or of the United States or of any

foreign government or country of a crime which, if

committed in this state, would be one of the above-

enumerated crimes, to possess a firearm or carry a

concealed weapon.

La.R.S. 14:95.1.

At trial, nine officers testified concerning their role in the investigation

and arrest. Corporal Glenn Hall, of the Alexandria Police Department, was patrolling

the streets on February 2, 2010, and pulled Defendant‟s vehicle over at the request of

Detective Gaudin, who was tailing Defendant‟s car in an unmarked police car.

Detective Gaudin was involved in an ongoing investigation into Defendant‟s drug

activities. Upon contact, Corporal Hall handcuffed Defendant and conducted a

thorough pat-down for officer safety. Defendant gave Corporal Hall verbal consent to

search his vehicle. The corporal then placed Defendant in the passenger side backseat

of the police unit. After Defendant was transported to the police station, Corporal

Hall found a plastic baggie containing marijuana, packets of cocaine, and several

hydrocodone pills in the backseat. The corporal surmised that the drugs belonged to

Defendant and that he had secreted them in the backseat after he was put into the unit.

Corporal Hall explained that it was routine to search the police unit before taking it

out on duty and again after a prisoner or suspect had been transported.

Juan Cruz, a detective in the narcotics division of the Alexandria Police

Department, was in the unmarked vehicle with Detective Gaudin. Upon being

advised by Corporal Hall that Defendant had given consent to search the car,

Detective Cruz commenced the search. He first located a handgun in the backseat.

6

He then saw a small packet of white powder under the driver‟s seat, next to the

console, which later tested positive as cocaine.

Detective Cruz then made contact with Defendant‟s son‟s mother, Maria

King. After she arrived to pick up her son, believing that Defendant lived with her, he

asked for permission to search their residence. After Maria recanted her initial

consent, a search warrant was obtained. A Styrofoam cup was located in the

refrigerator that contained more hydrocodone pills and two more small packets of

cocaine.

Defendant argues that even though drugs and a gun were located in the

car he was driving, in the police unit where he was seated, and in the house where his

girlfriend lived, there was no evidence that he had any connection with or knowledge

of the drugs or the gun. He points out that William Bates, a sergeant with the

Alexandria Police Department, who qualified as an expert in fingerprint analysis,

affirmed that no identifiable prints were found on the packaging of the drugs or on the

gun.

Defendant argues that Newton was left alone in Defendant‟s vehicle for a

short period of time while Defendant was out of the vehicle being patted down by

Corporal Hall. At trial, the corporal agreed with this assertion. Defendant argues that

Newton dropped the drugs onto the floor of the car at that time. He also contends that

Newton was the one who stashed the drugs later found in the backseat of the police

unit after Newton was put into the unit.

Moreover, Maria King testified at trial that the car Defendant was driving

was her car and that the gun belonged to her. She had bought the gun from a man she

knew only as “Bo Peep” a few months prior to the arrest. She had put the gun under

the backseat of her car with the intention of selling the gun back to “Bo Peep.” She

maintained that Defendant was unaware that the gun was there. Furthermore, she said

that she saw Newton put the Styrofoam cup in the refrigerator the night before,

7

explaining that although she was currently living with Defendant, at that time she was

having a relationship with Newton.

In brief, Defendant argues:

At the close of the state‟s case in chief, the evidence was

not sufficient to convict Brandon Allen. The fact that the

evidence is entirely circumstantial and that there is a reasonable

alternate hypothesis of innocence (Troy Newton was the

possessor of the drugs and Maria King was the possessor of the

gun as will be discussed further below), by law result in a lack

of sufficient evidence to convict. Even without further

motivation, rationalization, or facts, there is simply not enough

evidence to result in a verdict of guilty.

The supreme court discussed factors that may be considered when

determining whether an accused was in possession of drugs in State v. Major, 03-

3522, pp. 7-9 (La. 12/1/04), 888 So.2d 798, 802-03:

Possession of narcotic drugs can be established by actual

physical possession or by constructive possession. State

v. Trahan, 425 So.2d 1222, 1226 (La.1983). A person

can be found to be in constructive possession of a

controlled substance if the State can establish that he had

dominion and control over the contraband, even in the

absence of physical possession. State v. Harris, 94-0970,

p. 4 (La. 12/8/94), 647 So.2d 337, 338-39.

A determination of whether there is sufficient

“possession” of a drug to convict depends on the

particular facts of each case. Trahan, 425 So.2d at 1226.

Although mere presence in an area where drugs are

located or mere association with one possessing drugs

does not constitute constructive possession, this court has

acknowledged several factors to be considered in

determining whether a defendant exercised sufficient

control and dominion to establish constructive

possession, including: (1) his knowledge that drugs were

in the area; (2) his relationship with the person, if any,

found to be in actual possession; (3) his access to the area

where the drugs were found; (4) evidence of recent drug

consumption; and (5) his physical proximity to drugs.

[State v.] Toups at p. 4, [01-1875 (La. 10/15/02)], 833

So.2d [910] at 913. The evidence at trial established that

defendant had exercised dominion and control over the

cocaine hidden underneath the dashboard of the car by

virtue of his dominion and control over the vehicle as the

driver and professed renter. Ortega v. United States, 270

F.3d 540, 545 (8th Cir. 2001); see also State v. Walker,

03-188, p. 7 (La.App. 5 Cir. 7/29/03), 853 So.2d 61, 65-

8

66, writ denied, 03-2343 (La. 2/6/04), 865 So.2d 738

(holding that the driver and sole passenger had custody of

the car and the cocaine found in the car was within his

immediate control even though ownership of the vehicle

was not proven). . . .

Furthermore, guilty knowledge is an essential

element of the crime of possession of cocaine. [State v.]

Sylvia [01-1406] at p. 3, [La. 4/9/03)] 845 So.2d [358] at

361. However, since knowledge is a state of mind, it

need not be proven as fact, but rather may be inferred

from the circumstances. Id. (citing Trahan, 425 So.2d

1222, 1227).

While there is no physical evidence that Defendant possessed the drugs,

considering the above factors, the State negated the defense‟s hypothesis of

innocence—that Newton was the sole possessor of the drugs.

At trial, Maria King testified that she and Defendant have two children

together, the six-year-old boy who was in the car at the time of the arrest, and a nine-

year-old daughter. While they had been in an on/off relationship for years, he was not

living with her at the time of arrest. She stated he was living on Main Street in a

house his mother owned. Following Defendant‟s arrest, he insisted he lived at the

Main Street house. Detective Cruz testified, however, that he had been doing

surveillance on Defendant for several weeks and stated that Defendant was staying at

King‟s apartment. The day after the arrest, Detective Cruz contacted Defendant‟s

mother and, with her permission, searched the Main Street house. There was no

indication that anyone was living there. The house was undergoing renovations at the

time.

Corporal Wesley Matthews, an officer with the Alexandria Police

Department, testified that he helped with the search of King‟s apartment and found

men‟s clothing and shoes in the master bedroom. He also found Defendant‟s prison

ID badge in the bedroom. King denied that the clothing and shoes belonged to

Defendant. She explained that she was storing her brother‟s clothing and shoes at her

mother‟s request. However, Sandra Williams, King‟s mother, testified that she never

9

asked her daughter to store her son‟s clothing. Moreover, she testified that Defendant

was more than less staying with King at the time of the arrest.

The facts show that Defendant had, at least, constructive possession of

the drugs. His proximity to the drugs; his access to the area the drugs were found; and

his relationship with King, in whose apartment the same type of pills and drugs were

located as the pills and drugs found in the vehicle Defendant was driving and the

backseat of the police unit, all suggest constructive possession.

The supreme court in Major found that a defendant had dominion and

control over the cocaine located in the glove compartment of the rented vehicle he

was driving. The supreme court stated:

As driver and ostensible renter of the vehicle, the

defendant had complete and authorized access to the

glove box and dashboard area where the drugs were

found. Furthermore, the location of the drugs was within

the reach of and accessible to the defendant as the driver.

These facts alone are sufficient to convince a rational

trier of fact beyond a reasonable doubt that the defendant

exercised ample control and dominion over the cocaine

to constitute the required element of constructive

possession.

Id. at 803.

In Defendant‟s case, the packet of cocaine was located underneath the

driver‟s seat, next to the console. Corporal Hall testified that he located the drugs on

the side Defendant was sitting in the backseat, tucked between the seat and the back

cushion. A video of Defendant in the backseat of the unit was shown to the jury. The

Corporal pointed out the location where he found the drugs in the backseat during the

viewing. While Newton was eventually placed into the same police unit, the video

shown to the jury showed Defendant squirming extensively around in the backseat

before Newton made an appearance.

Moreover, it had been established that Defendant stayed with King. King

testified that Newton was in the house the evening before and saw him put the

10

Styrofoam cup in the refrigerator. He was with Defendant when the car was pulled

over. As noted, there was testimony that the hydrocodone pills in the cup in the

refrigerator were the same brand of hydrocodone pills found in the police unit where

Defendant sat. A person may be in joint possession of a drug in the physical custody

of another, if he willingly and knowingly shares with the other the right to control the

drug. State v. Toups, 01-1875 (La. 10/15/02), 833 So.2d 910.

Finally, the State had to prove guilty knowledge. Knowledge need not be

proved by facts, but may be inferred from the circumstances. Major, 888 So.2d 798.

In this case, Defendant attempted to hide the drugs. He hid the one packet of cocaine

under the driver‟s seat, and he attempted to dump the drugs to escape detection when

he was placed in the police unit. Moreover, he lied about where he was staying even

though the house he claimed to live in was unoccupied and under construction.

To prove possession of a firearm by a convicted felon, the State must

prove:

(1) the possession of a firearm; (2) a previous conviction

of an enumerated felony; (3) absence of the 10-year

period of limitation; and (4) general intent to commit the

offense. La.R.S. 14:95.1; State v. Husband, 437 So.2d

269 (La.1983); State v. Tatum, 27,301 (La.App. 2 Cir.

9/27/95), 661 So.2d 657. Constructive possession is

sufficient to satisfy the first element. State v. Day, 410

So.2d 741 (La.1982); State v. Wesley, 28,941 (La.App. 2

Cir. 12/13/96), 685 So.2d 1169. Constructive possession

occurs when the firearm is subject to a defendant‟s

dominion and control, even if only temporarily. State v.

Wesley, supra. Mere presence in the area where the

firearm is found, or mere association with someone else

who is in possession of the firearm, does not necessarily

establish possession. State v. Fisher, 94 2255 (La.App. 1

Cir. 12/15/95), 669 So.2d 460, writ denied, 96-0958 (La.

9/20/96), 679 So.2d 432. Moreover, constructive

possession contains an element of awareness, or

knowledge that the firearm is there and general intent to

possess it. State v. Evans, 29,675 (La.App. 2 Cir.

9/24/97), 700 So.2d 1039, writ denied, 97-2942 (La.

1/9/98), 705 So.2d 1121, and citations therein.

11

State v. Ball, 31,515, p. 3 (La.App. 2 Cir. 12/9/98), 733 So.2d 1, 3, aff’d, 99-428 (La.

11/30/99), 756 So.2d 275.

At trial, Detective Cruz testified that King and Defendant each had their

own vehicles. Defendant had a purple vehicle that he mostly drove. However, at

trial, King testified that she had asked Defendant to pick up her car from work

because she was having trouble with it. She stated that she was aware that the gun

was in the car. She described the gun before identifying it in court. She stated she

had bought the gun in 2008, paying two hundred dollars for it. She stated that while

she had usually kept the gun in her bedroom closet, she had put it into the car a few

months before because she was going to meet the man she had bought the gun from

for the purpose of selling it back to him. However, he did not make the appointment,

and the gun remained in the backseat of the car. She insisted that Defendant did not

know the gun was there. She had put the gun in that particular location in the car

because the seat lifted up and locked down. Corporal Hall testified that after he pulled

Defendant over and secured him, he told Detective Cruz to search the backseat

because he had seen Defendant reach back there as he was pulling the vehicle over.

Detective Cruz located the gun under the seat cushion where the Defendant‟s son had

been sitting. The State argues in brief, that “[a]s was stated in State v. Ball, supra, the

facts create „an irresistible inference‟ the defendant was in possession of the firearm

as he was the driver of the vehicle with a loaded .45 caliber pistol located under the

seat occupied by his six year old child.” However, Corporal Hall admitted the back

window of the car was tinted and it was difficult to see into the backseat. It should be

noted that a child was sitting on the lift-up seat and that it would have been difficult to

have placed the gun under the seat had that been Defendant‟s purpose for reaching

into the backseat.

The direct and circumstantial evidence establishes “an irresistible

inference” that Defendant possessed the drugs. The one packet of cocaine was found

12

under the driver‟s seat; the marijuana, cocaine, and hydrocodone pills located in the

police unit were found on the same side Defendant was seated; the drugs in the

refrigerator were of the same type of packets and pills as those found in the car and

the police unit; and it was established that Defendant at least stayed with King in her

house. Moreover, Defendant exhibited a guilty mind when he lied about where he

was staying and tried to rid himself of the drugs in the police vehicle.

However, except for the fact the gun was hidden in the car Defendant

was driving, there was little to infer that he had knowledge of the gun. Accordingly,

the evidence was insufficient to find him guilty of possession of a firearm. We

reverse the conviction of possession of a firearm by a felon, enter an order of acquittal

on that conviction, and vacate the sentence on that conviction.

MOTIONS FOR NEW TRIAL

Defendant filed a “Motion for New Trial” on August 22, 2010, arguing

that the evidence was insufficient. On September 17, 2010, he filed a “Supplemental

Motion for New Trial,” wherein he claimed newly discovered evidence. The trial

court denied the motions.

Defendant argues the trial court erred when it denied his motions because

the convictions were contrary to the law and evidence:

[I]n light of the testimony of Maria King who testified

concerning the gun and how she acquired it and how she

placed it in the car. Further, Ms. King testified to her

relationship with Mr. Newton who placed the drugs in

the refriderator [sic]. Defendant[‟s] counsel further

argued about Ms. King testifying that she had a

relationship with Mr. Newton which provided his

motivation for setting up Mr. Allen.

The trial court denied the first motion, stating that “there are no new

issues in those, so I‟m gonna deny the Motion for New Trial with regard to the

Motion to Suppress, the cause challenges and the insufficiency of evidence. I did hear

13

the testimony, but ah, you know, I, I guess the jury just didn‟t believe Ms. King. I

don‟t know.”

There was no error in the trial court‟s ruling regarding the drugs.

However, as suggested above, we find that the evidence was insufficient to sustain the

conviction for possession of a handgun by a convicted felon.

Defendant further argues the trial court erred when it denied his

supplemental motion for a new trial, in which he claimed newly discovered material

evidence that would have affected the outcome of the trial.

Louisiana Code of Criminal Procedure Article 851, in pertinent part,

provides:

The motion for a new trial is based on the

supposition that injustice has been done the defendant,

and, unless such is shown to have been the case the

motion shall be denied, no matter upon what allegations

it is grounded.

The court, on motion of the defendant, shall grant

a new trial whenever:

....

(3) New and material evidence that,

notwithstanding the exercise of reasonable

diligence by the defendant was not

discovered before or during the trial, is

available, and if the evidence had been

introduced at the trial it would probably

have changed the verdict or judgment of

guilty[.]

The standard of review applicable to a motion for new trial based on

newly discovered evidence was set forth in State v. Cavalier, 96-3052, 97-103, p. 3

(La. 10/31/97), 701 So.2d 949, 951, as follows:

A defendant seeking a new trial based on newly

discovered evidence must establish four elements: (1)

that the new evidence was discovered after trial; (2) that

failure to discover the evidence before trial was not

attributable to his lack of diligence; (3) that the evidence

is material to the issues at the trial; and (4) that the

evidence is of such a nature that it would probably

14

produce a different verdict in the event of retrial. State v.

Hammons, 597 So.2d 990, 994 (La.1992); State v.

Knapper, 555 So.2d 1335, 1339 (La.1990); State v.

Prudholm, 446 So.2d 729, 735 (La.1984). In ruling on

the motion, “[t]he trial judge‟s duty is not to weigh the

evidence as though he were a jury determining guilt or

innocence, rather his duty is the narrow one of

ascertaining whether there is new material fit for a new

jury‟s judgment.” Prudholm, 446 So.2d at 736.

Furthermore, in State v. Guidry, 94-678, p. 9 (La.App. 3 Cir. 12/7/94), 647 So.2d 502,

509, citing State v. Clayton, 427 So.2d 827 (La.1982), this court held that “[t]he trial

court‟s application of these precepts to newly discovered evidence is entitled to great

weight, and its denial of a new trial will not be disturbed on appeal absent a clear

abuse of that discretion.”

Defendant attached to the supplemental motion three handwritten

statements by Kendrick Thomas, Derrick Dorsey, and Anderson Traylor, which stated

that Newton was in love with King and wanted Defendant out of the picture by any

means, including setting him up for a “bogus” charge. Defendant argued that their

testimony at trial would have shown that Newton possessed the drugs and that he set

Defendant up.

At the hearing, the State argued that this information was not newly

discovered. At the trial, King had testified that she and Newton had had a recent

affair that she had not told Defendant about until just before trial. The jury heard

about the possible “love interest” and undoubtedly considered it. Furthermore, the

admissibility of the proposed evidence must be considered. The supreme court stated

in State v. Coleman, 05-1617, pp. 11-12 (La. 6/29/07), 959 So.2d 465, 472-73:

The admissibility at a new trial of the newly

discovered evidence is a factor in determining its

“fitness” for consideration by a jury at a second trial, and

it should be addressed before a conviction is reversed and

a new trial ordered. See State v. Watts, 00-0602 at 12-13,

[(La. 1/1403)] 835 So.2d [441] at 452. While the trial

court did not make a specific finding as to the hearsay

nature of Williams‟s testimony at the conclusion of the

hearing, its remarks clearly suggested that admissibility

15

would likely be an insurmountable obstacle had the

evidence been offered for trial. Yet, because the trial

court found the evidence would not result in a different

verdict if presented to another jury, it was not required to

decide the admissibility of that evidence at a subsequent

trial. Cf. State v. Watts, 00-0602 at 12-13, 835 So.2d at

452.

At any rate, the defense contends the victim‟s

statements to Williams do not constitute hearsay, or

should be admissible under various exceptions to the

hearsay rule. Hearsay is defined by La.Code Evid. art.

801(C) as a “statement, other than the one made by the

declarant while testifying at the present trial or hearing,

offered in evidence to prove the truth of the matter

asserted” and is inadmissible except as provided by law.

La.Code Evid. art. 802. Because the defendant seeks to

introduce the out-of-court statements to prove that the

police rather than the defendant possibly caused the

victim‟s injury, Williams‟s testimony as to what the

victim had allegedly communicated to her, either

verbally or non-verbally, about the police beating him

certainly constitutes hearsay evidence.

Similarly, in the current case, the trial court did not make a specific

finding that the alleged newly discovered evidence was inadmissible, but did state:

“Well, I, ah, I‟m gonna deny the request for a new trial on the Supplemental Motion.

I, I just don‟t see where any of this would make a difference if it were admissible.

Ah, and I certainly can‟t figure out how. . . is it Derrick Dorsey and Anderson

Traylor‟s statements could be admissible under, under any circumstances that

presented themselves at trial.” We agree. A review of the written statements shows

that they are hearsay statements which also accuse Newton of being an informant and

a drug addict. The statements appear vague and unreliable. For these reasons, the

trial court did not abuse its discretion when it denied Defendant‟s supplemental

motion for new trial on the drug charges.

ADMISSIBILITY OF LABORATORY REPORTS

At trial, the State established that the cocaine, marijuana, and

hydrocodone pills were the alleged substances by submitting into evidence two

16

certified copies of reports issued by North Louisiana Criminalistics Laboratory

pursuant to La.R.S. 15:499-501. Defendant objects to the use of the laboratory reports

as a violation of his right to confront and cross-examine the witnesses who performed

the analysis of the substances. He points to Crawford v. Washington, 541 U.S. 36,

124 S.Ct. 1354 (2004) and Melendez-Diaz v. Massachusetts, __ U.S.__, 129 S.Ct.

2527 (2009). In Crawford, it was held that testimonial statements of witnesses absent

from trial may be admitted only when the declarant was unavailable and only when

the defendant had opportunity to cross-examine. In Melendez-Diaz, the United States

Supreme Court held that the power to subpoena the analysts could not substitute for

the right of confrontation because compulsory process was of no use to a defendant.

However, Defendant made no objection at trial to the admission of the

certified laboratory report without the appearance of the analyst. “An irregularity or

error cannot be availed of after verdict unless it was objected to at the time of

occurrence.” La.Code Crim.P. art. 841.

ENHANCEMENT OF DRUG OFFENSES

Defendant argues that the trial court improperly enhanced both

possession of narcotics convictions. As noted, the trial court originally sentenced him

to two five-year terms on the possession of narcotic convictions, to be served

concurrently. At the habitual offender hearing, the State amended the bill of

information to request that both of the possession of narcotic convictions be enhanced.

Defendant objected. However, after taking the matter under consideration, the trial

court found that Defendant was a third felony offender and determined that it was

appropriate to enhance both convictions and sentenced Defendant to ten years on each

conviction to be served concurrently.

Defendant contends that under the circumstances of his case, La.R.S.

15:529.1 contemplates that only one conviction may be enhanced and desires that this

17

court vacate the two sentences, remand the case to the trial court with the instructions

that the State must elect which sentence is to be enhanced, and for the trial court to

resentence Defendant accordingly. We disagree.

In State v. Shaw, 06-2467, pp. 17-18, 20 (La. 11/27/07), 969 So.2d 1233,

1243-44, 1245 (footnote omitted), the supreme court found that the trial court did not

err in enhancing all five of defendant‟s sentences based upon his adjudication as a

third felony offender, stating:

As we have explained, the habitual offender statute

was enacted “as a deterrent and a warning to first

offenders and as a protection to society by removing the

habitual offender from its midst.” State v. George, 218

La. 18, 26, 48 So.2d 265, 267 (La.1950). The habitual

offender statute does not create a separate offense or

punish an individual for past crimes; rather, the statute

increases punishment on the basis of an individual‟s

status as a repeat offender. The goal is to deter and

punish recidivism by punishing more harshly those who

commit the most crimes. State v. Johnson, 97-1906, p. 8

(La. 3/4/98), 709 So.2d 672, 677. (“Under this statute the

defendant with multiple felony convictions is treated as a

recidivist who is to be punished for the instant crime in

light of his continuing disregard for the laws of our state.

He is subjected to a long sentence because he continues

to break the law.”). Contrary to the conclusion of the

[State ex rel.] Porter [v. Butler, 573 So.2d 1106

(La.1991)] court, this goal is not served when a defendant

commits multiple felonies in a continuous episode of

criminal activity but is punished more severely for only

one of those felonies. The purpose of the statute, to

dissuade first offenders from committing subsequent

felonies and to punish more harshly those who commit

the most crimes, is served only when the repeat offender

is subject to sentence enhancement for each subsequent

felony. Enhancing the sentence on only one of multiple

convictions arising out of a single criminal episode

actually thwarts the goal of protecting society by

removing the most egregious offenders from its midst.

The single enhancement produces the incongruous and

illogical consequence of removing any incentive the

statute might otherwise impose on a recidivist to cease

criminal activity once begun, a result directly at odds

with the purpose of the statute. We cannot endorse an

interpretation of the statute that would attribute this

consequence to the legislation. Savoie v. Rubin, 01-3275,

p. 4 (La. 6/21/02), 820 So.2d 486, 488 (“The function of

the court is to interpret the laws so as to give them the

18

meaning which the lawmakers obviously intended them

to have and not to construe them so as to give them

absurd or ridiculous meanings.”). Contrary to the

conclusion of the Porter court, we find that it is

unnecessary to superimpose upon the habitual offender

statute a limitation permitting enhancement of only one

of multiple sentences entered on the same date arising out

of a single criminal episode.

....

We therefore hold that the language of LSA-R.S.

15:529.1 contains no prohibition against enhancing

multiple sentences obtained on the same date arising out

of a single criminal act or episode. Unlike the Porter

court, we find no legislative purpose or policy that is

contradicted by failing to read such a prohibition into the

statute‟s language. Nor does a plain reading of the

statute generate absurd or unjust results. In clear and

unambiguous terms, the statute exposes a person who has

previously been convicted of a felony to enhanced

penalties for any felony committed after the date of the

prior felony conviction. There is no statutory bar to

applying the habitual offender law in sentencing for more

than one conviction obtained on the same date, whether

the convictions result from separate felonies committed

at separate times or arise out of a single criminal act or

episode. To the extent that the opinions in Porter and

[State v.] Sherer [411 So.2d 1050 (La.1982)] are

inconsistent with this conclusion, they are overruled.

Accordingly, there was no error in the trial court‟s decision to enhance

both of the narcotics possession convictions.

SUPPRESSION OF EVIDENCE

Defendant argues that the evidence should have been suppressed because

the stop of his vehicle initiated by the police was without sufficient reasonable

suspicion or probable cause. Furthermore, Defendant asserts he did not give free and

voluntary consent to search the vehicle. Finally, he contends the search of his

girlfriend‟s residence was done without a proper search warrant.

Detective Latisha Gaudin was contacted by a confidential informant and

advised that Defendant was at that moment selling cocaine. The CI told her the

neighborhood Defendant would be in, described the vehicle, and gave her the license

19

plate number. The detective, together with Kary Beebe, a sergeant with the

Alexandria Police Department, Detective Cruz, Detective Matthews, Sergeant

Newman Bobb, and DEA Special Agent Scott Wright, went in two separate unmarked

vehicles to find Defendant. Defendant was located in the neighborhood the CI

described.

Detective Gaudin stated that before they contacted Corporal Hall to

initiate the stop, the officers in the first car behind Defendant observed him

committing a traffic violation when he crossed over the centerline while negotiating a

curve in the road. The detective was advised after she arrived at the scene of the

traffic stop that Defendant gave verbal consent to search his vehicle, wherein the

cocaine was located under the driver‟s seat and the gun in the backseat. She agreed

that written consent to search the vehicle was not obtained until after the drugs and the

gun were found.

Detective Gaudin testified that because Detective Cruz had an ongoing

narcotics investigation which included Defendant, it was suspected that there were

more drugs at his residence. She stated that although it had been decided to get a

search warrant, King granted permission to search the residence when she arrived at

the scene to pick up her son. Once at the residence, however, she withdrew her

permission. The detective then proceeded to obtain the search warrant while the

officers waited outside the residence with King. After the detective left, two dogs

made a “free air” sniff and alerted to two locations on the exterior of the apartment.

Once she had obtained the warrant, Detective Gaudin called ahead, and the officers

commenced the search.

Defendant testified and denied he crossed the center line while driving.

He denied that he gave verbal consent to search the vehicle. He said he was

intimidated into signing the consent form. He denied that he lived with King and their

20

children. He admitted that he had been booked on thirty-seven different occasions

and had been convicted seven times of various offenses.

Defendant argued at the hearing that Corporal Hall did not see him

commit a traffic offense and there was not reasonable suspicion to warrant a stop

based on the confidential informant‟s information. He contended that the State further

failed to prove there was consent to search the vehicle, noting that Detective Gaudin

admitted the consent form was not signed by Defendant until after the search had been

conducted. Finally, he argued that the officers had entered King‟s house on the

pretext of escorting the women to the restroom and began to search the premises

without the search warrant. For all of these reasons, Defendant argues that the police

conducted illegal searches and seizures and that the trial court, therefore, erred when it

denied his motion to suppress the evidence.

Traffic Violation

The Fourth Amendment to the United States

Constitution and Art. 1, § 5 of the Louisiana Constitution

prohibit unreasonable searches and seizures. If evidence

is derived from an unreasonable search or seizure, the

proper remedy is to exclude the evidence from trial.

State v. Boss, 04-457, p. 4 (La.App. 5 Cir. 10/26/04), 887

So.2d 581, 585.

Law enforcement officers are authorized by LSA-

C.Cr.P. art. 215.1, as well as state and federal

jurisprudence, to perform investigatory stops, which

permit officers to stop and interrogate a person who is

reasonably suspected of criminal activity. 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.

Gresham, 97-1158, p. 6 (La.App. 5 Cir. 4/15/98), 712

So.2d 946, 951, writ denied, 98-2259 (La. 1/15/99), 736

So.2d 200. The Terry standard, as codified in LSA-

C.Cr.P. art. 215.1, authorizes 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.” State v. Melancon, 03-514, p. 5

(La.App. 5 Cir. 10/28/03), 860 So.2d 225, 229, writ

denied, 03-3503 (La. 4/23/04), 870 So.2d 297.

21

The “reasonable suspicion” necessary 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 the facts

and circumstances to justify an infringement on the

individual‟s right to be free from governmental

interference.” State v. Melancon, supra. Without

reasonable suspicion, an investigatory stop is illegal and

the evidence seized from that stop is suppressible. State

v. Triche, 03-149, p. 4 (La.App. 5 Cir. 5/28/03), 848

So.2d 80, 84, writ denied, 03-1979 (La. 1/16/04), 864

So.2d 625.

State v. Francois, 04-1147, pp. 5-6 (La.App. 5 Cir. 3/29/05), 900 So.2d 1005, 1009-

10.

Defendant argues that the officers intended to stop his vehicle regardless

of whether there was a valid traffic violation. He maintains that Corporal Hall

initially testified that he did not see the reported traffic violation. Sergeant Beebe

reported that as they were observing Defendant‟s vehicle, they saw him cross over the

double yellow line while taking a curve on the roadway. They then called for a patrol

officer to initiate a traffic stop. Corporal Hall was in the immediate vicinity and

promptly spotted Defendant‟s vehicle and pulled him over. In State v. Elliott, 09-

1727 (La. 3/16/10), 35 So.3d 247, the supreme court discussed the legality of a traffic

stop when the officer had not seen the traffic offenses but was told by witnesses of the

offenses. Elliott explained that:

The determination of whether probable cause

exists for an arrest or reasonable suspicion for an

investigatory stop is a purely objective inquiry that takes

into account “all of the information known collectively to

the law enforcement personnel involved in the

investigation.” State v. Landry, 98-3008, p. 5 (La.

1/8/99), 729 So.2d 1019, 1022 (citing United States v.

Klein, 93 F.3d 698, 701 (10th Cir. 1996) (“Probable

cause can rest upon the collective knowledge of the

police, rather than solely on that of the officer who

actually makes the arrest.”)); United States v. Butler, 74

F.3d 916, 921 (9th Cir. 1996) (“Probable cause can also

be demonstrated through the collective knowledge of

police officers involved in an investigation, even if some

of the information known to other officers is not

communicated to the arresting officer.”). Thus, the

22

arresting officer need not have talked to the informants or

had any knowledge of their reliability to act on a report

from the police dispatcher relying upon information

supplied by a witness, provided that the information

conveyed to the dispatcher had the requisite indicia of

reliability to justify a stop based on reasonable suspicion.

We are aware that a growing number of

jurisdictions have concluded that drunken or erratic

driving presents such an immediate risk of public safety

that it constitutes an exception to the general rule of

Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146

L.Ed.2d 254 (2000), that police may not act on

anonymous tips unless they corroborate them in

sufficient detail. See Virginia v. Harris, --- U.S. ----,

130 S.Ct. 10, 175 L.Ed.2d 322 (2009) (Roberts, C.J.,

dissenting from the denial of certiorari) (“The majority of

courts examining the question have upheld investigative

stops of allegedly drunk or erratic driver, even when the

police did not personally witness any traffic violations

before conducting the stops. . . . A minority of

jurisdictions, meanwhile, take the same position as the

Virginia Supreme Court, requiring that officers first

confirm an anonymous tip of drunk or erratic driving

through their own independent observation.”); see also

Cottrell v. State, 971 So.2d 735, 745

(Ala.Crim.App.2006) (“We now join our sister states of

Vermont, Iowa, Wisconsin, South Dakota, New Jersey,

New Hampshire, Hawaii, Delaware, and Kansas, and

hold that an anonymous tip concerning a potential drunk

driver may be sufficiently reliable to justify a Terry [v.

Ohio, 392 U.S. 1, 88S.Ct. 1868, 20 L.Ed.2d 889 (1968)

stop without independent corroboration by the police.”);

State v. Sousa, 151 N.H. 297, 855 A.2d 1284, 1288

(2004) (“Since J.L. a few intermediate state appellate

courts have concluded that anonymous tips of drunk or

erratic driving are unreliable, requiring police

corroboration of the tip's incriminating details. By

contrast, every state court of last resort that has directly

addressed the issue has concluded that, in a drunk or

erratic driving case, certain tips are sufficiently reliable

and detailed, when viewed in the totality of the

circumstances, to establish reasonable suspicion.”)

(citations omitted).

Id. at 251-52.

In the current case, Corporal Hall did not need independent

corroboration of the tipster‟s information. He was advised by Sergeant Beebe

that Defendant had committed a traffic violation. It was not an anonymous tip.

23

The information was sufficiently reliable to allow the stop. See also State v.

Perry, 39,644 (La.App. 2 Cir. 4/13/05), 900 So.2d 313, wherein the second

circuit held that a traffic stop was valid after one officer who was following a

suspected drug dealer radioed another police officer to pull over Perry because

he was not wearing his seat belt.

Accordingly, in the current case, considering the above jurisprudence,

Corporal Hall had the requisite reasonable suspicion to initiate a traffic stop based on

the detective‟s information and request.

Confidential Informant’s Tip

Defendant argues that “[i]n effect, each of the officers involved in the

initial traffic stop testified that they had every intention of stopping the vehicle driven

by Mr. Allen regardless of any traffic violations or probable cause other than the

information furnished to them by the confidential informant.” However, we conclude

there was sufficient reasonable suspicion to stop and detain Defendant from the

information given to Detective Gaudin by the confidential informant.

Under certain circumstances, a tip by an informant

can supply reasonable suspicion to detain and question a

person. State v. Rodriguez, 99-914, p. 4 (La.App. 5 Cir.

1/25/00), 761 So.2d 14, 17, writ denied, 00-0599 (La.

4/7/00), 759 So.2d 765. Generally, the informant‟s tip

must contain predictive information regarding the future

behavior of the reported suspect, and the tip must be

corroborated. Alabama v. White, 496 U.S. 325, 110 S.Ct.

2412, 110 L.Ed.2d 301 (1990); State v. Robertson, 97-

2960, p. 3 (La. 10/29/98), 721 So.2d 1268, 1270.

....

In a hearing on a Motion to Suppress, the State

bears the burden of proof in establishing the admissibility

of evidence seized without a warrant. State v. Tovar, 03-

513, p. 4 (La.App. 5 Cir. 10/15/03), 860 So.2d 51, 54.

LSA-C.Cr.P. art. 703(D). “The trial court‟s decision to

deny a motion to suppress is afforded great weight and

will not be set aside unless the preponderance of the

evidence clearly favors suppression.” State v. Flagg, 01-

65, p. 4 (La.App. 5 Cir. 7/30/01), 792 So.2d 133, 138,

24

writ denied, 01-2534 (La. 9/20/02), 825 So.2d 1159

(citation omitted). To determine whether the trial court‟s

denial of the Motion to Suppress is correct, the appellate

court may consider the evidence adduced at the

suppression hearing, as well as the evidence presented at

trial. State v. Butler, 01-907, p. 4 (La.App. 5 Cir.

2/13/02), 812 So.2d 120, 124.

Francois, 900 So.2d 1010-11.

Detective Gaudin testified that she had received information from a

confidential informant that a black male, Brandon Allen, was riding around with

narcotics in the vehicle. He told her Defendant was in a blue Impala, selling powder

cocaine, and that he was currently in the area of Polk Street. He further gave her the

license plate number of the vehicle. She stated that she had received information from

this informant that had resulted in four arrests in the past six months and had no

reason to disbelieve him.

The tip was not given by an anonymous informant; rather it was given by

an informant who had work with Detective Gaudin successfully in the past. In State

v. Holmes, 08-719, p. 7 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 279, writ denied, 09-

816 (La. 1/8/10), 24 So.3d 857, the fifth circuit discussed sufficiency of a confidential

informant‟s tip:

Tips provided to police by confidential informants

can supply sufficient reasonable suspicion to conduct an

investigative stop under certain circumstances. The tip

must accurately predict the offender‟s conduct in

sufficient detail to support a finding that the informant

had reliable information regarding the illegal activity.

See, e.g., Id. The tip must also be corroborated by the

police. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412,

110 L.Ed.2d 301 (1990). If an informer‟s tip accurately

predicts the offender‟s future behavior it gains an

additional modicum of reliability. Id. Predictive ability

is not always necessary; a non-predictive tip coupled

with police corroboration or independent police

observation of suspicious activity can provide the police

with the requisite reasonable suspicion to detain a

suspect. See, e.g., State v. Francois, 04-1147, p. 7

(La.App. 5 Cir. 3/29/05), 900 So.2d 1005, 1010. An

informant‟s past record for accuracy and reliability is

another factor taken into account when determining the

25

reliability of the tip in question. State v. Austin, 04-993

(La.App. 5 Cir. 3/1/05), 900 So.2d 867, 879, writ denied,

05-0830 (La. 11/28/05), 916 So.2d 143.

The Louisiana Supreme Court has noted:

While probable cause must be determined

on the totality of the circumstances, an

informant‟s reliability, veracity and basis of

knowledge are “all highly relevant.” Illinois

v. Gates, 462 U.S. 213[, 103 S.Ct. 2317, 76

L.Ed.2d 527] (1983); State v. Ruffin, 448

So.2d 1274, 1278 (La.1984). A confidential

informant may provide adequate information

to establish probable cause for a warrantless

arrest, so long as the basis for the

informant‟s knowledge and the informant‟s

reliability, when examined under the totality

of the circumstances, are established.

State v. Fisher, 97-K-1133, p. 8 (La. 9/9/98),

720 So.2d 1179, 1184.

In Holmes, the fifth circuit decided there were several factors in favor of

admissibility of the evidence. The informant had proved very reliable over several

years, and the police corroborated the defendant‟s name, physical description, and

vehicle. Moreover, the CI accurately advised where the vehicle could be located.

Noting that the police showed no evidence that the defendant was committing, had

committed, or was about to commit an offense and that it was “pellucidly clear that

the tip provided absolutely no predictive information,” the fifth circuit found that the

sergeant had the requisite reasonable suspicion to stop the defendant‟s car, stating:

It is also true that the confidential information‟s tip

did not provide every pertinent detail, as was the case in

White. For example, the informant omitted mention

which the defendant resided, where in the vehicle the

cocaine would be located, and what quantity of cocaine

would be found. As the United States Supreme Court

noted, a failure to provide every detail is not a fatal error,

but it is significant.

Id. at 281.

In this case, the confidential informant gave information regarding

Defendant driving around and selling cocaine in a specific area. He also gave a

26

description of the Defendant‟s girlfriend‟s car. At trial, King testified that Defendant

seldom drove the vehicle as he had his own, thereby evidencing the CI‟s specific

knowledge and familiarity of Defendant‟s activities. This fact was corroborated by

Detective Cruz, who was also at the time investigating allegations of Defendant‟s

drug activity and knew Defendant had his own car. In fact, as discussed above, it was

because the detective had conducted surveillance on Defendant that he knew

Defendant had lied about where he was staying at the time of the arrest. Accordingly,

there was no error in the trial court‟s determination that there was reasonable

suspicion to stop Defendant‟s vehicle based on the CI‟s information.

Consent

It was not disputed that the written consent form to search Defendant‟s

vehicle was not signed by Defendant until after the search had been conducted and the

drugs and gun were found. Defendant, however, testified he did not give verbal

consent to search the vehicle and argued that he was not aware that he had signed a

consent form.

Consent to search is one of the recognized

exceptions to the warrant requirement, where the consent

is freely and voluntarily given by a person who possesses

common authority over or other sufficient relationship to

the premises or effects sought to be inspected. United

States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993,

39 L.Ed.2d 242 (1974). When the state relies on consent

to justify a warrantless search, it has the burden of

proving the consent was freely and voluntarily given.

Voluntariness of consent is a question of fact which the

trial judge must determine based on a totality of the

circumstances. State v. Edwards, 434 So.2d 395

(La.1983); State v. Jennings, 39,543 (La.App. 2d Cir.

3/2/05), 895 So.2d 767, writ denied, 05-1239 (La.

12/16/05), 917 So.2d 1107; State v. Paggett, 28,843

(La.App. 2d Cir. 12/11/96), 684 So.2d 1072.

State v. Thompson, 46,039, pp. 7-8 (La.App. 2 Cir. 2/23/11), 58 So.3d 994, 1000.

Furthermore, voluntariness is a question for the trier of fact to determine

based on the totality of the circumstances and is to be given great weight upon

27

appellate review. State v. Snelling, 09-1313 (La.App. 3 Cir. 5/5/10), 36 So.3d 1060,

writ denied, 10-1301 (La. 12/17/10), 51 So.3d 16.

Corporal Hall testified at the suppression hearing that as he was patting

Defendant down, he acted like he was trying to conceal something, so the corporal

asked him if he had anything to hide and did he have any problems with “us”

searching the vehicle. “He said yes, he said no, he didn‟t have any problems with us

searching it, and yes we could.” Corporal Hall conveyed this information to the

narcotics officers as soon as they arrived at the scene. Detective Gaudin testified that

she was advised by Detective Matthews that Defendant had given oral consent to

search so she prepared a consent to search form for Defendant‟s signature and

discussed it with him.

At the suppression hearing, Defendant denied he gave verbal permission

to search the car. “Never, never.” He stated that when they asked for his consent, he

told the officer “I told‟ em no. I said, bring the, ah, canine unit.” He explained he

signed the consent form after the search was conducted because he was told “it was

gonna take a little longer for me to bond out. They say, ah, gave me ultimatum, say

you can sign it now, you sign you later, but it‟s gonna take you a long time to bond

out.” When asked if this had been his experience in the past, he stated: “Not the first

time I heard it. But the other times I never signed nothin‟.” While stating that he was

not familiar with the booking process, he admitted he has been booked for various

offenses thirty-seven times within a ten-year period, including seven convictions,

several of which were drug offenses.

Defendant was no stranger to arrest, search and seizure, and the booking

process, such that when it was explained to him that he was signing a consent form, he

would have refused to sign if he had, as he testified, so adamantly refused verbal

consent. While the burden is on the State to prove voluntary consent, there is nothing

28

to indicate that Defendant‟s verbal consent and then the written consent were not

freely and voluntary given.

Search of Residence

Defendant does not challenge the search warrant that was issued

February 2, 2010, to search King‟s residence. He only argues that the officers

conducted a warrantless search of the residence. He states that “[t]he witness testified

that when she went in the house and that all of the officers went in with her and

started to search the house without the warrant. This amounts to a warrantless search

of the residence. It is undisputed that the officers did not have permission to search

the residence.”

At the suppression hearing, Detective Gaudin testified that after they

arrived at the house, King withdrew her permission to search the premises. The

premises were secured, and King and her cousin, Jasma Fairley, were not allowed to

enter the house at that time. The detective left and obtained a search warrant. She

stated that once she had the warrant, she called ahead and advised the officers waiting

at the apartment.

Fairley testified that once at King‟s apartment, she asked to be allowed

inside to go to the bathroom, but was made to wait for about two hours before she was

allowed inside. She said that as she and King entered the house, officers went with

them to search the bathroom before they could use it. She then stated:

Ahm, as I was leaving, as I was leaving the house,

going back to the car, ahm, they stayed in and with they

(sic) gloves and stuff and just started searching the house,

and that‟s when my cousin walked back in and was like

where‟s the search warrant? And they was like, it‟s on

its way.

Testimony established that a search warrant was obtained. Fairley

testified that they were made to wait two hours before being allowed into the house to

use the restroom. Detective Gaudin obtained a search warrant and called ahead and

29

advised the waiting officers. According to Fairley‟s testimony, when asked about the

search warrant, an officer said that it was on its way. Once a lawful warrant is

obtained, there is no requirement that the warrant be served before the search. State v.

Williams, 193 So.2d 787 (La.1967). See also State v. Fournette, 08-254 (La.App. 4

Cir. 7/2/08), 989 So.2d 199, writs denied, 08-1815, 08-1824 (4/17/09), 6 So.3d 789,

wherein the officers entered the premises to secure it while another officer obtained

the search warrant. The fourth circuit held that “because the warrant was not based

upon any information gleaned from the illegal entry, it was not tainted by the entry,

and the inevitable discovery doctrine would apply in this case if the search warrant

was lawfully issued.” Id. at 214.

A defendant bears the burden of proving that evidence seized pursuant to

a search warrant should be suppressed. State v. Williams, 03-302 (La.App. 4 Cir.

10/6/03), 859 So.2d 751, writ denied, 04-3093 (La. 11/28/05), 916 So.2d 133. In the

current case, Defendant failed to meet his burden of proof.

There is no merit to these alleged errors. There was reasonable suspicion

sufficient to make a traffic stop of Defendant‟s vehicle, plus the confidential

informant‟s tip gave the officer reasonable suspicion that Defendant had committed

and was going to commit criminal offenses. Defendant‟s consent to search the vehicle

was freely and voluntarily given. Moreover, the apartment where Defendant was

staying was lawfully searched, and the seizure of the drugs in the refrigerator as a

result of the investigation was lawful.

CONCLUSION

For all of the above reasons, Defendant‟s two convictions for possession

of Schedule II and Schedule III substances are affirmed. There was insufficient

evidence to support the conviction for possession of a firearm by a felon. We,

therefore, reverse this conviction, enter an order of acquittal, and vacate the sentence.

30

As for the two enhanced sentences imposed on the convictions for

possession of Schedule II and Schedule III substances, the trial court did not err when

it enhanced both sentences.

We order the trial court to vacate the Defendant‟s original sentences of

five years each imposed for possession of cocaine and possession of hydrocodone

prior to the imposition of the habitual offender sentence. We also order the trial court

to correct the January 20, 2011 sentencing minutes to correctly reflect the habitual

offender sentences imposed by the trial court as reflected in the sentencing transcript,

specifically, that the sentences were not imposed at hard labor and that a ten-year

sentence was imposed on each count of the two drug possession convictions.

CONVICTIONS FOR POSSESSION OF COCAINE AND

POSSESSION OF HYDROCODONE AFFIRMED.

CONVICTION FOR POSSESSION OF A FIREARM BY A

CONVICTED FELON REVERSED, ORDER OF ACQUITTAL ENTERED,

AND SENTENCE VACATED. REMANDED WITH INSTRUCTIONS.

31