Opinion
2022 KA 0085
09-16-2022
STATE OF LOUISIANA v. COLT ANTON HICKS
Scott M. Perrilloux District Attorney Brett Sommer Jeffrey J. Hand Serena Birch Assistant District Attorneys Livingston, Louisiana Counsel for Appellee State of Louisiana Cynthia Meyer New Orleans, Louisiana Counsel for Defendant/Appellant Colt Anton Hicks
NOT DESIGNATED FOR PUBLICATION
Appealed from the Twenty-First Judicial District Court In and for the Parish of Livingston State of Louisiana Docket Number 39870 Honorable Brian K. Abels, Judge Presiding
Scott M. Perrilloux
District Attorney
Brett Sommer
Jeffrey J. Hand
Serena Birch
Assistant District Attorneys
Livingston, Louisiana
Counsel for Appellee
State of Louisiana
Cynthia Meyer
New Orleans, Louisiana
Counsel for Defendant/Appellant
Colt Anton Hicks
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
GUIDRY, J.
The defendant, Colt Anton Hicks, was charged by bill of information with possession of less than two grams of methamphetamine, a violation of La. R.S. 40:967(C)(1). He pled not guilty. The trial court denied the defendant's motion to suppress evidence. After a trial by jury, the defendant was found guilty as charged. The trial court sentenced the defendant to two years imprisonment at hard labor. The trial court denied the defendant's motion to reconsider sentence. The trial court subsequently denied the defendant's motion for new trial filed on the date of the sentencing hearing. The defendant now appeals, assigning error to the trial court's denial of his motion to suppress and to the constitutionality of his sentence. For the following reasons, we affirm the conviction, vacate the sentence, and remand for resentencing.
STATEMENT OF FACTS
On August 22, 2019, around 8:00 a.m., Deputy Justin McKnight of the Livingston Parish Sheriffs Office was dispatched to a vacant lot on North Corbin Road after a complainant reported a suspicious vehicle (a blue Toyota Camry) parked on the property. When Deputy McKnight arrived in the area, he saw a small blue vehicle with no one in or around it. He touched the hood of the vehicle, and it was cold to the touch. He ran the license plate number to determine the registered owner, Lauren Louque, and used the Sheriffs reporting system to obtain Ms. Louque's phone number. He called the phone number several times but was unable to contact Ms. Louque.
At the motion to suppress hearing, Deputy McKnight testified that the complainant was the owner of the vacant lot.
While the trial transcript spells the registered owner's last name as L-u-k-e, the above spelling, consistent with Deputy McKnight's testimony at the motion to suppress hearing during which he spelled out her last name, will be used herein.
Deputy McKnight noted that due to rainfall on the previous day, the area was muddy. He observed and followed footprints that led to a neighboring property with a pond, located 50 to 60 yards from where the vehicle was parked, but was unable to find anyone. Deputy McKnight then made contact with the complainant. He informed the complainant that he was unable to contact the registered owner of the vehicle, but that the vehicle was subject to a private property tow at the expense of the owner of the vehicle, should the complainant wish to contact a wrecker service.
While speaking to the complainant, Deputy McKnight saw the vehicle in question pass by, traveling northbound on North Corbin Road. He immediately positioned his marked unit behind the vehicle, alerted dispatch, and initiated an investigatory stop. Once the vehicle was stopped, Deputy McKnight exited his unit, approached the driver's side of the vehicle, introduced himself to the occupants, and questioned the driver (the defendant) about the vehicle being on private property. The defendant informed Deputy McKnight that he had been fishing in the pond, as he had done for a two-year period.
Deputy McKnight asked if there was anything illegal in the vehicle and asked the passenger, whom he learned was the owner, Ms. Louque, if he could search the vehicle. After Deputy McKnight was denied consent to search the vehicle, he ordered the defendant and Ms. Louque to exit the vehicle and advised them of their Miranda rights. Deputy McKnight contacted a K-9 deputy, Deputy Robbie Ellis, who responded to the scene.
Deputy McKnight specifically advised the defendant of his right to remain silent, that anything he said could and would be used against him in a court of law, that he had a right to have an attorney present upon being questioned, and that he had the right to cease questioning. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
As Deputy Ellis walked his canine around the perimeter of the vehicle, it alerted to the presence of narcotics in the vehicle. Deputies on the scene then conducted a search of the vehicle and recovered a glass pipe and two clear plastic baggies from the driver's side of the backseat. One of the baggies contained suspected methamphetamine, described as a crystal-like substance. When confronted with the substance, the defendant admitted that it belonged to him. A field test performed by Deputy McKnight at the scene and subsequent testing by the Louisiana State Crime Lab confirmed that the substance consisted of methamphetamine.
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one, the defendant argues the trial court erred in denying his motion to suppress evidence, as the deputies performed an illegal search of the vehicle. He argues that the deputies did not have reasonable suspicion to prolong the stop to allow the K-9 unit to arrive. He notes that the purpose of the stop was to determine why the vehicle was parked on private property. He further notes that Deputy McKnight testified that he obtained the vehicle registration information within two minutes and there were no outstanding warrants for the defendant or Ms. Louque, though they were handcuffed and placed in a police car. Moreover, the defendant contends that there was no testimony that Deputy McKnight was in fear of his safety or the safety of the other officers who arrived on the scene during the twenty-five-minute waiting period for the arrival of the K-9 unit. Citing Rodriguez v. United States, 575 U.S. 348, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), the defendant concludes that based on the totality of the circumstances, Deputy McKnight unlawfully extended the stop solely for the purpose of allowing the K-9 unit time to arrive.
We note that the defendant is not contesting the legality of the initial stop.
The State notes that Deputy McKnight was actively investigating a criminal offense, a trespassing complaint, when he gathered information of another possible criminal offense, removing fish from private property. The State argues that Deputy McKnight had probable cause to believe that the occupants of the vehicle had committed the above-named offenses. The State further notes that during the investigatory stop, Deputy McKnight observed behavior by the passenger, Ms. Louque, to support an objectively reasonable conclusion that she was attempting to conceal evidence. The State concludes that the record reflects Deputy McKnight briefly extended the stop in a diligent effort to confirm or dispel an objectively reasonable suspicion of criminal activity.
The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. A warrantless search is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Cox, 18-0769, p. 6 (La.App. 1st Cir. 2/22/19), 272 So.3d 597, 602, writ denied, 1900604 (La. 9/17/19), 278 So.3d 973, cert, denied, ___ U.S. ___, 140 S.Ct. 1279, 206 L.Ed.2d 262 (2020). Once a defendant makes an initial showing that a warrantless search or seizure occurred, the burden of proof shifts to the State to prove the admissibility of a purported confession or statement by the defendant or any evidence seized without a warrant. La. C.Cr. P. art. 703(D).
The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is, however, recognized by both federal and state jurisprudence. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Bell, 14-1046, p. 4 (La.App. 1st Cir. 1/15/15), 169 So.3d 417, 421. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions. La. C.Cr.P. art. 215.1(A); State v. Belton, 441 So.2d 1195, 1198 (La. 1983), cert, denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Reasonable suspicion for an investigatory stop is something less than probable cause and must be determined under the specific facts of each case by whether the officer had sufficient knowledge of particular facts and circumstances to justify the infringement on the individual's right to be free from governmental interference. State v. Thompson, 02-0333, p. 5 (La. 4/9/03), 842 So.2d 330, 335.
Probable cause is defined as "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion." State v. Warren, 05-2248, p. 10 (La. 2/22/07), 949 So.2d 1215, 1224. "Probable cause to arrest exists when the facts and circumstances within an officer's knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a person of average caution in the belief that the accused has committed an offense." State v. Wells, 08-2262, p. 8 (La. 7/6/10), 45 So.3d 577, 582-83.
In determining whether or not reasonable cause exists to temporarily detain a person, the totality of the circumstances, "the whole picture," must be considered. Belton, 441 So.2d at 1198 (quoting United States v. Cortez, 449 U.S. 411,417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). The detaining officer must have knowledge of specific, articulable facts which, taken together with rational inferences from those facts, reasonably warrant the stop. State v. Flowers, 441 So.2d 707, 714 (La. 1983), cert, denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984); State v. Matthews, 15-1281, p. 5 (La.App. 1st Cir. 2/26/16), 191 So.3d 1080, 1083-84, writ not considered, 16-1182 (La. 11/15/16), 209 So.3d 787.
Once a vehicle is lawfully stopped, an officer may order the driver, as well as the passengers, out of a vehicle pending completion of the stop. Maryland v. Wilson, 519 U.S. 408,414-15, 117 S.Ct. 882, 886, 137L.Ed.2d41 (1997); State v. Cure, 11-2238, p. 4 (La. 7/2/12), 93 So.3d 1268, 1270 (per curiam), cert, denied, 568 U.S. 988, 133 S.Ct. 549, 184 L.Ed.2d 357 (2012); see also Pennsylvania v. Mimms, 434 U.S. 106, 110-11, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977) (per curiam); State v. Matthews, 15-1281 at p. 6, 191 So.3d at 1084 (while ordering passengers out of cars may be a slight inconvenience, it is not a serious intrusion upon privacy interests). During the stop, the officer has the right to conduct a routine license and registration check and, while doing so, may engage in conversation with the driver and any passenger. See State v. Lopez, 00-0562, p. 3 (La. 10/30/00), 772 So.2d 90, 93 (per curiam); State v. Barnes, 12-0615, p. 6 (La.App. 1st Cir. 11/2/12), 2012 WL 5387692, at *4, writ denied, 13-0634 (La. 8/30/13), 120 So.3d 264. Furthermore, when a police officer has a specific suspicion of criminal activity, he may detain an individual while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985); State v. Fuentes, 11-1214, p. 7 (La.App. 1st Cir. 2/10/12), 2012 WL 602362, at *4 (unpublished).
It is well settled that a canine search is not a "search" within the meaning of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983); Fuentes, 11-1214 atp. 7, 2012 WL 60236, at *4; State v. Jackson, 06-1904, p. 5 (La.App. 1st Cir. 3/23/07), 960 So.2d 170, 172, writ denied, 07-1026 (La. 11/16/07), 967 So.2d 523. Moreover, a canine alert has been held to be sufficient to establish probable cause to search. State v, Gant, 93-2895, p. 2 (La. 5/20/94), 637 So.2d 396, 397 (per curiam).
A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the district court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jarrell, 07-1720, p. 4 (La.App. 1st Cir. 9/12/08), 994 So.2d 620, 625. 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, p. 11 (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, 09-1589, p. 6 (La. 12/1/09), 25 So.3d 746, 751. In determining whether the ruling on a motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223, n. 2 (La. 1979); State v, Jefferson, 18-0083, p. 8 (La.App. 1st Cir. 9/24/18), 261 So.3d 793, 799, writ denied, 18-1671 (La. 2/25/19), 266 So.3d 294.
At the hearing on the motion to suppress, Deputy McKnight testified that the owner of the vacant lot called in the complaint regarding the unfamiliar, "suspicious vehicle" parked on her property. After Deputy McKnight stopped the vehicle, he noticed Ms. Louque, "continued to look back, up, down" and appeared to be bending over. Deputy McKnight specifically noted that as Ms. Louque was bending up and down and going in and out of sight, she kept looking back at him. As Deputy McKnight approached the driver's side of the vehicle and inquired about the vehicle being on private property, the defendant readily admitted that he was fishing in the pond.
Based on Ms. Louque's behavior, Deputy McKnight asked if there was anything illegal inside of the vehicle and asked for consent to search the vehicle. The defendant denied that there was anything illegal in the vehicle and responded on Ms. Louque's behalf, denying consent to search the vehicle. Deputy McKnight testified that he ordered the defendant and Ms. Louque to exit the vehicle out of concern for his safety. After he Mirandized them, he again sought a response from Ms. Louque regarding his request to search the vehicle, at which point the defendant again interrupted and spoke over Ms. Louque, as she too denied consent. In plain view in the vehicle, Deputy McKnight noticed two fishing poles and a tackle box behind the driver's seat that were not there when he first observed the vehicle, unoccupied in the vacant lot. Deputy Ellis and his canine arrived within fifteen to twenty minutes. Deputy Ellis testified that the canine alerted to the "presence of a narcotics odor" within approximately a minute and a half of their arrival on the scene.
At trial, Deputy McKnight described the defendant as "passive aggressive."
At trial, Deputy Ellis testified that it took him twenty to twenty-five minutes to arrive at the scene.
In denying the motion to suppress, the trial court noted the stop was initiated because the vehicle was parked on private property without permission just before it was seen passing by Deputy McKnight. The trial court concluded that based on the repeated movements of Ms. Louque, there was grounds for reasonable suspicion. The trial court found that Deputy McKnight's actions were proper.
At the outset, we note that the instant case is distinguishable from Rodriguez. In Rodriguez, the question presented to the United States Supreme Court was "whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff." Rodriguez, 575 U.S. at 353, 135 S.Ct. at 1614. Therein, a traffic stop was initiated because the vehicle was being driven on the shoulder of the road. The officer completed the traffic stop and issued a citation in about twenty-one minutes. After the citation was issued, the officer detained the defendant while waiting for a K-9 unit to arrive. After a sniff test and search of the vehicle, a bag of methamphetamine was discovered. Id. at 351-52, 135 S.Ct. at 1612-13. The court held that it was a violation of the Fourth Amendment to detain the defendant after the citation was issued and further noted that an officer "may conduct certain unrelated checks during an otherwise lawful traffic stop," but may not prolong the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual. Id. at 355, 135 S.Ct. at 1615. We note that the Federal Fifth Circuit has emphasized that Rodriguez has limited relevance once reasonable suspicion is established. See U.S, v. Davis, 620 Fed.Appx. 295, 299, n. 1 (5th Cir. 2015); State v. Spearman, 190065, p. 11 (La.App. 1st Cir. 5/31/19), 2019 WL 2315415, at *5.
Herein, the stop was not due to a traffic violation, but was instead based on reasonable suspicion, and in fact, probable cause, that criminal trespass of immovable property had just been committed. See La. R.S. 14:63(B)(1). Criminal trespass is an arrestable offense, punishable by imprisonment for up to thirty days for a first offense. See La. R.S. 14:63(G)(1); see also La. C.Cr.P. art. 213(A)(3). While the defendant contends that the stop was unjustifiably prolonged, the record reveals that the stop progressed quickly. At the point of the stop, before Deputy McKnight called the K-9 unit, his suspicions were heightened as he observed Ms. Louque's movements and the fishing gear in the vehicle. The defendant then admitted to fishing in the pond adjacent to the private property in question, constituting more than reasonable suspicion of additional criminal activity, theft of livestock, which is another arrestable offense. See La. R.S. 14:67.1(D) &(F); see also La. C.Cr.P. art. 213(A)(3). Deputy McKnight's growing suspicion of criminal activity was further based on the defendant's repeated interruptions as Deputy McKnight addressed Ms. Louque in seeking consent to search her vehicle. With noted safety concerns, Deputy McKnight ordered the defendant and Ms. Louque to exit the vehicle early on, after being denied consent to search the vehicle, and the K-9 unit arrived within fifteen to twenty-five minutes. The moment the canine alerted Deputy McKnight had probable cause to search the vehicle. Spearman, 190065 at p. 10, 2019 WL 2315415, at *5. Considering the totality of the circumstances, no unreasonable seizure or detention of the defendant occurred in this case. Thus, we find no abuse of discretion in the trial court's denial of the motion to suppress. Assignment of error number one lacks merit.
PATENT ERROR
Pursuant to La. C.Cr.P. art. 920, this court routinely conducts a review for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. After a careful review of the record, we have found patent sentencing errors.
The defendant filed a motion for new trial on the day of, but prior to, sentencing on June 24, 2021. However, the trial court declined to rule on the motion prior to imposing the sentence. Subsequently, after granting the motion for appeal, the trial court denied the defendant's motion to reconsider sentence. Later, on October 4, 2021, the trial court denied the motion for new trial. Under La. C.Cr.P. art. 853(A), a motion for new trial must be filed and disposed of before sentence. Under La. C.Cr. P. art. 873, in pertinent part, "[i]f a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled." The trial court's failure to rule on the merits of a motion for new trial prior to sentencing constitutes an error patent on the face of the record and requires vacation of the sentence and remand. See State v. Straub, 11-0155, pp. 2-3 (La.App. 1st Cir. 6/10/11), 2011 WL 3557832, at * 1; State v. Robinson, 14-453, p. 11 (La.App. 5th Cir. 12/23/14), 167 So.3d 793, 799-800. Herein, the trial court erred by sentencing the defendant before ruling on the motion for new trial.
We note that pursuant to La. C.Cr.P. art. 916, a trial court is divested of jurisdiction upon the granting of a defendant's motion for an appeal. Herein, the trial court granted the motion for appeal on July 6, 2021. Thus, the trial court was divested of jurisdiction at the time of the denial of the motion for new trial, months later.
The Louisiana Supreme Court noted that a failure to observe the 24-hour delay provided in Article 873 may be considered harmless error where the defendant could not show that he suffered prejudice from the violation, and sentencing is not raised on appeal. State v. Augustine, 555 So.2d 1331, 1333-34 (La. 1990) (discussing State v. White, 404 So.2d 1202, 1204-05 (La. 1981)); see also State v. Stafford, 20-0299, p. 7 (La.App. 1st Cir. 2/22/21), 321 So.3d 965, 969. Where, however, a defendant does challenge his sentence, failure to follow the required 24-hour delay renders a sentence void. Augustine, 555 So.2d at 1333 (citing State v. Mistich, 186 La. 174, 171 So. 841 (1937) and State v. George, 218 La. 18, 48 So.2d 265 (1950), cert, denied, 340 U.S. 949, 71 S.Ct. 528, 95 L.Ed. 684(1951)).
In this case, through a claim of excessiveness, the defendant is challenging his sentence, thus meeting the requirements of Augustine for remand. See Straub, 2011 WL 3557832, at * 1; State v. Pursell, 04-1775, p. 5 (La.App. 1st Cir. 5/6/05), 915 So.2d 871, 874. Additionally, the record does not contain even an implicit waiver of the sentencing delay. While defense counsel did not explicitly contest moving on to sentencing without a ruling on the motion for new trial, in State v. Kisack, 16-0797, p. 7 (La. 10/18/17), 236 So.3d 1201, 1205 (per curiam), cert, denied, ___ U.S. ___, 138 S.Ct. 1175, 200 L.Ed.2d 322 (2018), the supreme court found the defense counsel's participation in the sentencing hearing was insufficient to constitute a waiver of the delay required by Article 873. As further observed by the court, "[a]n implicit waiver ... runs afoul of the plain language of Art. 873 that requires that the waiver be expressly made." Id. Because we find that Augustine requires the reversal of the defendant's sentence and remand for resentencing, it is at this time premature to review the merits of the defendant's excessiveness claim raised in assignment of error number two. See State v. Thompson, 10-2254, p. 3 (La.App. 1st Cir. 6/10/11), 2011 WL 3423798, at *1. Thus, the sentence is hereby vacated, and the matter is remanded to the trial court for resentencing in accordance with this opinion.
At the sentencing hearing, after being told by defense counsel that a motion for new trial had been filed, the trial court repeatedly stated that it was ready to "move on" with sentencing. Once the trial court repeatedly (three times) expressed its readiness to impose sentence, the defense counsel stated, "Your Honor - all right. I think that is going to be a problem, but - [.]" At that point, the trial court interrupted, stating in part, "Well, I mean this is the first I've heard of a motion for a new trial." The trial court again stated that it was "ready to move on with sentencing" just prior to imposing the sentence. Thus, while the trial court expressed its readiness for sentencing, there was no such statement by the defendant or defense counsel.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.