Opinion
2016 KA 0291
09-19-2016
STATE OF LOUISIANA v. SHANE GRIGSBY
Scott Perrilloux District Attorney Matthew Belser Assistant District Attorney Charlotte Foster Assistant District Attorney Livingston, LA Patricia Parker Amos Assistant District Attorney Amite, LA Attorneys for Plaintiff/Appellee State of Louisiana Gwendolyn K. Brown Louisiana Appellate Project Baton Rouge, LA Attorney for Defendant/Appellant Shane Grigsby
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-First Judicial District Court In and for the Parish of Livingston State of Louisiana
No. 31903 The Honorable M. Douglas Hughes, Judge Presiding Scott Perrilloux
District Attorney
Matthew Belser
Assistant District Attorney
Charlotte Foster
Assistant District Attorney
Livingston, LA
Patricia Parker Amos
Assistant District Attorney
Amite, LA Attorneys for Plaintiff/Appellee
State of Louisiana Gwendolyn K. Brown
Louisiana Appellate Project
Baton Rouge, LA Attorney for Defendant/Appellant
Shane Grigsby BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
The defendant, Shane Grigsby, was charged by bill of information on count one with simple burglary, a violation of La. R.S. 14:62, and on count two with possession of a firearm or carrying a concealed weapon by a convicted felon, a violation of La. R.S. 14:95.1. The defendant initially entered a plea of not guilty on both counts and filed a motion to suppress evidence. Subsequently, the trial court denied the defendant's motion to suppress. The defendant withdrew his original pleas and pled nolo contendere on both counts, reserving the right to appeal the trial court's ruling on the motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). The trial court sentenced the defendant to ten years imprisonment at hard labor on both counts, to be served concurrently. The defendant now appeals, assigning error to the trial court's ruling on the motion to suppress. For the following reasons, we affirm the convictions and sentence on count one, conditionally affirm the sentence on count two, and remand with instructions.
The defendant's motion to suppress is not in the record before us; however, the record includes the minutes and transcript for the hearing held on the motion in the trial court.
FACTS
As indicated, the defendant pled nolo contendere to the instant offenses; thus, there was no trial to fully develop the facts. In accordance with the testimony presented at the motion to suppress hearing, the following occurred. On January 13, 2015, Officer Michael LeBlanc of the Denham Springs Police Department (DSPD) was dispatched to Money Matters, located at the corner of Florida Boulevard and Sullivan Lane. According to Officer LeBlanc, the dispatch included a description of a suspect involved in an automobile burglary in progress. When Officer LeBlanc arrived on the scene, he spotted the defendant standing outside of a vehicle parked in the roadway at Sullivan Lane. Officer LeBlanc advised the defendant of his rights and detained him; a passenger of the defendant's vehicle, Dana Rider, was also detained.
Officer LeBlanc then interviewed witnesses who identified the defendant as the person they observed entering a vehicle and removing property. Officer LeBlanc learned that after the defendant removed items from the vehicle in question, he placed those items inside his own vehicle before returning to the vehicle in question. The defendant returned to that vehicle apparently to remove more items from it when the victim (the owner of the vehicle that was entered) approached. Correspondingly, the victim informed Officer LeBlanc that when he approached his vehicle, the defendant was inside of the vehicle without his permission. The victim recognized the defendant as someone he knew from years before but did not authorize him to enter the vehicle. The victim confronted the defendant and recovered the toolbox and a couple of pairs of shoes that the defendant took from the vehicle. According to Officer LeBlanc, the defendant initially denied taking anything from the vehicle before claiming that he was playing a joke on an old friend whom he had not seen in five years.
Officer LeBlanc conducted a search of the defendant's vehicle and recovered two shotguns from the backseat that were wrapped in a towel. Unlike the other items, the victim did not identify the guns as his property. Officer LeBlanc further performed a background check and learned that the defendant was a convicted felon. The defendant claimed he was "taking the guns and his passenger to Money Matters to sell them." He realized upon arrival that the establishment was closed.
At the hearing, the State introduced evidence to show that the defendant was previously convicted of possession of a Schedule IV controlled dangerous substance (diazepam) and possession of a Schedule II controlled dangerous substance (cocaine). La. R.S. 40:964; La. R.S. 40:967; La. R.S. 40:969.
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant contends that the trial court erred in denying his motion to suppress the evidence seized from his vehicle. The defendant specifically argues that the search of his vehicle was unlawful because it was not authorized by consent or a warrant. The defendant further contends that none of the exceptions to the warrant requirement are applicable in the instant case. Specifically, the defendant argues that the police did not have probable cause to believe that the defendant's vehicle would contain evidence of a crime, noting that before the search took place the victim had already recovered the items taken from his vehicle. The defendant further argues that there were no exigent circumstances. In that regard, the defendant notes that he and his passenger were detained before the search took place, and that there was no threat of the destruction of evidence. The defendant also maintains that the evidence at issue would not have been inevitably discovered during an inventory search since the police allowed the vehicle to remain at Money Matters at the defendant's request.
A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jones, 2001-0908 (La. App. 1st Cir. 11/8/02), 835 So.2d 703, 706, writ denied, 2002-2989 (La. 4/21/03), 841 So.2d 791. Correspondingly, when a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751.
The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. La. Code Crim. P. art. 703(A). Subject only to a few well-established exceptions, a search or seizure conducted without a warrant issued upon probable cause is constitutionally prohibited. Once a defendant makes an initial showing that a warrantless search or seizure occurred, the burden of proof shifts to the State to affirmatively show it was justified under one of the narrow exceptions to the rule requiring a search warrant. State v. Young. 2006-0234 (La. App. 1st Cir. 9/15/06), 943 So.2d 1118, 1122, writ denied, 2006-2488 (La. 5/4/07), 956 So.2d 606; see also La. Code Crim. P. art. 703(D).
An exception to the warrant requirement exists when there is probable cause to search an automobile. The warrantless search of an automobile is not unreasonable if there is probable cause to justify the search, without proving additional exigency, when the automobile is readily mobile because there is an inherent risk of losing evidence. See Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999) (per curiam). It has been held in applying the automobile exception that there is no constitutional distinction between seizing and holding a vehicle before presenting the probable cause issue to a magistrate and immediately searching the vehicle without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment and the Louisiana Constitution. State v. Gordon, 93-1923 (La. App. 1st Cir. 11/10/94), 646 So.2d 1005, 1010.
Probable cause is defined as reasonable grounds for belief, supported by less than prima facie proof, but more than mere suspicion. This determination must be made from the totality of the circumstances, based on the objective facts known to the officer at the time. State v. Warren, 2005-2248 (La. 2/22/07), 949 So.2d 1215, 1224. The determination of probable cause for arrest does not rest on the officer's 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. Landry, 98-0188 (La. 1/20/99), 729 So.2d 1019, 1020 (per curiam). In considering those circumstances, a reviewing court should give deference to the inferences and deductions of a trained police officer "that might well elude an untrained person." State v. Huntley, 97-0965 (La. 3/13/98), 708 So.2d 1048, 1049 (per curiam) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). Thus, if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits the police to search the vehicle without more. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) (per curiam).
At the hearing on the motion to suppress in this case, Officer LeBlanc testified that the dispatch informed him of the location and description of the suspect involved in a burglary in progress. The defendant was near his vehicle when Officer LeBlanc arrived and witnesses indicated that they observed him taking items from the victim's vehicle. The defendant was observed by the victim while in the victim's vehicle. The victim identified the defendant, whom he knew but did not authorize to enter his vehicle, as the perpetrator. The defendant ultimately admitted that he removed items from the victim's vehicle. At this point, the search of the defendant's vehicle took place. On cross-examination, Officer LeBlanc confirmed that the defendant instantly submitted to the order to walk toward the officer and was immediately handcuffed and placed in the police unit.
The search of the automobile in this case falls within the automobile exception defined above. Under the circumstances presented in this case, where the defendant was spotted by the police still at the scene of the burglary in progress at the time of the dispatch, eyewitnesses identified him as the perpetrator who transferred items from the vehicle, and the defendant admitted to removing items from the vehicle, the police clearly had probable cause to believe the vehicle contained additional evidence of the burglary. Although the victim indicated that he had retrieved the stolen property, the police had sufficient cause to search the vehicle to ensure that all of the stolen property had, in fact, been recovered. Further, there was no legal impediment to the police officers searching the entire vehicle. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. U.S. v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982); State v. Tatum, 466 So.2d 29, 31 (La. 1985); see also California v. Acevedo, 500 U.S. 565, 570, 111 S.Ct. 1982, 1986, 114 L.Ed.2d 619 (1991). We find further that exigent circumstances were also present because the vehicle was readily mobile. See State v. Thompson, 2002-0333 (La. 4/9/03), 842 So.2d 330, 337-38. Accordingly, the warrantless search of the vehicle was lawful under the automobile exception. See State v. St. Martin, 93-1863 (La. App. 1st Cir. 10/7/94), 644 So.2d 773, 776. We find no abuse of discretion by the trial court in denying the defendant's motion to suppress the evidence. The assignment of error is without merit.
Because there was probable cause to search the vehicle pursuant to the automobile exception to the warrant requirement, we need not and do not address any issue as to whether the search was a valid inventory search. State v. St Martin, 93-1863 (La. App. 1st Cir. 10/7/94), 644 So.2d 773, 776 n.4. --------
PATENT ERROR REVIEW
This Court routinely reviews the record for patent errors pursuant to La. Code Crim. P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La. Code Crim. P. art. 920(2). After a careful review of the record in these proceedings, we have found no reversible errors. However, we note that in sentencing the defendant on the count two conviction of possession of a firearm or carrying a concealed weapon by a convicted felon, the trial judge did not restrict parole as required by La. R.S. 14:95.1(B). Further, we note the mandatory fine of not less than one thousand dollars nor more than five thousand dollars was not imposed. See La. R.S. 14:95.1(B).
We note, however, that the trial court imposed the sentences in accordance with the plea agreement. Under Louisiana Code of Criminal Procedure article 890.1, a trial court possesses the authority to depart from mandatory sentencing terms by agreement of all parties. Accordingly, we affirm the defendant's convictions and sentences, but remand this matter to the trial court with instructions that it amend the minutes and issue a new commitment order specifying that defendant's sentence on count two was imposed under the authority of Article 890.1 See La. Code Crim. P. art. 890.1(E); State v. Robertson, 2014-0612 (La. App. 1st Cir. 11/25/14), 168 So.3d 451, 456.