Opinion
No. 99-KA-0147.
January 26, 2000.
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 393-376, SECTION "F", STATE OF LOUISIANA, HONORABLE DENNIS J. WALDRON, JUDGE.
Harry F. Connick, District Attorney of Orleans Parish, Charles E.F. Heuer, Assistant District Attorney, 619 South White Street, New Orleans, Louisiana 70119, Counsel for State-Appellee.
Christopher A. Aberle, Louisiana Appellate Project, P.O. Box 8583, Mandeville, Louisiana 70470-8583, Counsel for Defendant-Appellant.
(Court composed of Judge William H. Byrnes, III, Judge Moon Landrieu, Judge Dennis R. Bagneris, Sr.)
(Landrieu, J., Dissents with Reasons)
On November 21, 1997, the State filed a bill of information charging defendant-appellant Dwight LeBlanc with one count of possession of cocaine with the intent to distribute, a violation of La.R.S. 40:967 (A). LeBlanc entered a plea of "not guilty" on April 6, 1998. Following a motion hearing on April 16, 1998, the trial court denied LeBlanc's motion to suppress evidence. On July 1, 1998, a trial was held before a twelve-person jury, which returned a responsive verdict of guilty of simple possession of cocaine. LeBlanc entered a plea of "not guilty" to a multiple bill of information filed by the State on July 24, 1998. LeBlanc appeared on September 18, 1998, at which time the trial court denied LeBlanc's motion for a post verdict judgment of acquittal or motion for new trial. The State filed the multiple bill again, and LeBlanc entered another "not guilty" plea. On September 23, 1998, a multiple bill hearing was held. The court pronounced LeBlanc a multiple offender and sentenced him as a second offender under La.R.S. 15:529.1 to ten years at hard labor without the benefit of probation or suspension of sentence. The trial court then denied the motion to reconsider sentence filed by LeBlanc and granted his motion for an appeal.
STATEMENT OF FACTS :
On July 16, 1997, Sergeant Imbragulio, Detective Gillard, and Officer Loman of the Fifth District narcotics unit were actively patrolling for street-level narcotics activity in the 1200 block of Alabo Street. They had targeted that location because of narcotics activity in the area, because they had made numerous narcotics arrests in that block, and because of citizens' complaints. Officer Loman exited the unmarked police car in the 1200 block of Gordon Street because, in the officers' experience, many suspects on Alabo Street had run through the apartment complex and escaped on Gordon. Sergeant Imbragulio and Detective Gillard drove around the corner and, as they entered the 1200 block of Alabo, they observed LeBlanc standing in the driveway next to a Pontiac Grand Am. They saw the driver of the Grand Am hand LeBlanc currency at which time LeBlanc handed the driver an object. After the transaction, LeBlanc looked in the direction of the officers' vehicle with a look of "misbelief" on his face. As the Pontiac Grand Am drove away, LeBlanc walked to a 1985 Oldsmobile parked nearby. He opened the trunk of the vehicle with a key and placed something into a milk crate in the trunk. He then closed the trunk, placed the keys in his pocket, and crouched down behind the rear wheel of the car.
Based on their observations and belief that LeBlanc had just engaged in a narcotics transaction, the officers exited the police vehicle, approached LeBlanc, and informed him that he was under investigation. When Detective Gillard asked LeBlanc who owned the Oldsmobile, LeBlanc said that it belonged to someone who lived in the apartment complex, but he did not know the person's name. Detective Gillard then frisked LeBlanc, removed the keys from his pocket, opened the trunk of the vehicle, and observed a plastic bag containing white compressed powder inside of the milk crate. LeBlanc was arrested. A full search of LeBlanc resulted in the seizure of $177 in currency. After LeBlanc had been arrested and transported to the Fifth District station, the officers ran the vehicle identification number on the Oldsmobile and found that it was registered to LeBlanc.
At trial, Officer William Giblin, an expert in the identification of cocaine, testified that he tested the State's exhibit and that it was positive for cocaine.
LeBlanc presented no witnesses at trial.
ERRORS PATENT :
A review of the record reveals no errors patent.
MOTION TO SUPPRESS EVIDENCE :
Defendant assigns only one error: that the trial court erred when it denied his motion to suppress evidence. Defendant argues that the officers lacked probable cause to seize the keys from his pocket and search the trunk of the car.
We note initially that an appellate court may consider evidence received at a trial when determining whether a ruling on a defense motion to suppress was correct. State v. Seward, 509 So.2d 413 (La. 1987); State v. Brooks, 505 So.2d 714 (La. 1987),cert. denied sub nom Brooks v. Louisiana, 484 U.S. 947 (1987);State v. Adams, 521 So.2d 470 (La.App. 4 Cir. 1988) writ denied, 523 So.2d 231 (La. 1988). Here, the sole witness at the motion hearing was Sergeant Imbragulio, whereas Detective Gillard also testified at the trial. Nevertheless, there is little difference between the facts adduced at both proceedings. Sergeant Imbragulio testified at the motion hearing that the 1200 block of Alabo Street is an apartment complex where the police had made numerous narcotics arrests in the past. The sergeant testified that he "observed the defendant engage in a transaction with a black male that [sic] was in a white Grand Am." The sergeant described LeBlanc's actions in walking to the Oldsmobile, opening the trunk with a key, and placing an object inside. The testimony regarding the stop of LeBlanc, his denial of ownership of the Oldsmobile, and the seizure of the keys and search of the trunk was indistinguishable from the testimony at trial. The sergeant was questioned on whether the officers had received any specific complaints about the defendant or any reports of narcotics sales at that very time; the officer admitted that no such immediate complaints had been received.
On cross-examination, Sergeant Imbragulio did describe how LeBlanc looked in the officers' direction before walking to the Oldsmobile, although the officer did not mention any startled look on LeBlanc's face, and how LeBlanc squatted down behind the car after he closed the trunk. He also described in greater detail that the apparent transaction was "money exchanged for an object, an unknown object."
In brief to this court, the appellant avers that, from this description of the transaction, "the trial judge could only assume (incorrectly it turns out)" that the police saw LeBlanc hand the other person money and receive an object in exchange, i.e., that the defendant was the buyer not the seller. This statement appears to have absolutely no support in the motion transcript as the trial court never stated that it believed the defendant was the buyer: the court simply found probable cause. Nothing in the transcript from the motion hearing indicated that the trial court assumed the defendant was the buyer and not the seller.
As this court stated in State v. Davis, 612 So.2d 1052, 1053 (La.App. 4 Cir. 1993):
C.Cr.P. art. 213 authorizes a policeman to arrest a person who has committed an offense in his presence. The search of a defendant is legal if there is probable cause of [sic] his arrest. Probable cause exists when the facts and circumstances known to the officers and of which they have reasonably trustworthy information are sufficient to justify the belief by a man of ordinary caution that the suspect has committed or is committing a crime. State v. Roebuck, 530 So.2d 1242, 1247 (La.App. 4th Cir. 1988), writ denied, 531 So.2d 764.
The appellant argues that the trial court erred in finding probable cause upon the mere observation that LeBlanc and another person exchanged an object for currency, citing State v. Thornton, 621 So.2d 173 (La.App. 4 Cir. 1993), writ denied 93-2109 (La. 9/23/94), 642 So.2d 1307. In Thornton, this court found that the police lacked probable cause when they observed only an exchange of money for an unknown object wrapped in white paper between the defendant and another man in an area known for drug trafficking. Neither of the two men attempted to elude the officers or act in an otherwise suspicious manner, and the men were not known to the officers.
The court did find that the officers had reasonable suspicion to justify an investigatory stop, but reversed the conviction because the frisk of defendant went beyond that of a search for weapons.
In contrast to Thornton, this court found probable cause inState v. Young, 93-0414 (La.App. 4 Cir. 8/17/94), 642 So.2d 255, which is cited by the State in its brief. In Young, police officers on routine patrol in an unmarked police car in the Desire Housing Project observed the defendant and another man engage in a hand-to-hand transaction in which the defendant passed an object to the other man and received paper currency from him in return. The officers drove up adjacent to the men, then exited the police car and yelled at the men to freeze. Both the defendant and the other man fled. The officers chased and caught the defendant and ordered him to the ground. A frisk for weapons was negative; nevertheless the officers handcuffed the defendant and conducted a full search, which resulted in the seizure of cocaine from the defendant's pocket. On appeal, this court found that the defendant had been arrested prior to the search and that there was probable cause for the arrest. The Court distinguished Thornton because in Thornton there was no attempt to flee from the police.
In State v. Davis, 612 So.2d 1052 (La.App. 4 Cir. 1993), police officers on patrol near a housing project approached an area known for narcotics trafficking. They saw the defendant with several other people who were walking up and down the sidewalk and apparently engaged in drug sales to buyers on foot and in automobiles. The defendant was observed removing a matchbox from his pocket and showing the contents to another person. As the officers approached, several people fled, but the officers were able to stop the defendant. A search resulted in the seizure of the matchbox and the discovery of cocaine inside. The trial court granted the defendant's motion to suppress, but this court reversed, finding that common sense told the officers that the defendant was selling drugs "just as common sense dictates the conclusion that the officers had probable cause to arrest him."Davis, 612 So.2d at 1053. The court then found that the seizure of the matchbox and cocaine within it was a lawful search incidental to an arrest.
The instant case more closely resembles Young than it doesThornton. While the defendant did not actually flee, he had a look of disbelief when he observed the officers' unmarked vehicle, according to Sergeant Imbrugulio's trial testimony. More importantly, after placing an object in the trunk of the car, the defendant crouched down beside the vehicle in a possible attempt to avoid the officers' attention. Additionally, when asked to whom the car belonged, he disavowed knowledge of the owner. It is clear that, in light of the fact that the officers had observed the defendant open the trunk with a key, his subsequent denial of any connection to the vehicle could only strengthen the probability that his actions had no innocent explanation.
The district court is vested with great discretion when ruling on a motion to suppress. State v. Scull, 93-2360 (La.App. 4 Cir. 6/30/94), 639 So.2d 1239, writ denied, 94-2058 (La. 11/11/94), 644 So.2d 391. The trial court in this case found probable cause for the arrest, search and seizure of the keys. The search of the trunk was also justified under the automobile exception to the warrant requirement, which allows officers to search a vehicle if they have probable cause to believe it contains contraband. State v. Tatum, 466 So.2d 29 (La. 1985). In light of Young and Davis, we cannot say that the trial court's decision was manifestly erroneous; and we accordingly affirm defendant's conviction and sentence.
AFFIRMED .
I respectfully dissent.
Probable cause exists when the facts and circumstances known to the officer and about which he has reasonable trustworthy information are sufficient to justify the belief by a man of ordinary caution that the suspect has committed or is committing a crime. State v. Roebuck, 530 So.2d 1242, 1247 (La.App. 4th Cir. 1988), writ denied 531 So.2d 764. Contrary to the finding of the district court, I believe the officers did not have probable cause to reach into the defendant's pockets, take his car keys, and open the trunk of his car, wherein the baggie of crack cocaine was discovered.
At the hearing on the motion to suppress, Sergeant Imbraguglio testified that he observed the defendant engage in a "transaction," which, according to him, appeared to be a drug transaction. After the transaction, he observed the defendant place an object in the trunk of his car. Nonetheless, on cross-examination when asked to describe the transaction, Sergeant Imbraguglio testified, "I just observed money exchanged, money exchanged for an object, an unknown object. I didn't know what the object was." He also acknowledged he and the other officers had not received any specific complaints about the defendant or any reports of narcotic sales in the area at that time.
Assuming Sergeant Imgraguglio's testimony as to the facts is accurate, the district court could only conclude that the officers had reasonable suspicion to conduct an investigatory stop of the defendant and pat him down for weapons. The officers, however, lacked probable cause to arrest the defendant. In fact, they did not arrest him until after they searched him, took his keys and opened the trunk. Clearly, the search was illegal under the circumstances and the evidence seized as a result of that search should have been suppressed.