Opinion
2019 KA 0065
05-31-2019
STATE OF LOUISIANA v. PATRICK DAVID SPEARMAN
Lieu T. Vo Clark Louisiana Appellate Project Mandeville, Louisiana ATTORNEY FOR APPELLANT DEFENDANT—Patrick David Spearman Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana ATTORNEYS FOR APPELLEES The State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany • State of Louisiana
Docket Number 585824 • Division B The Honorable August J. Hand, Judge Presiding Lieu T. Vo Clark
Louisiana Appellate Project
Mandeville, Louisiana ATTORNEY FOR APPELLANT
DEFENDANT—Patrick David
Spearman Warren L. Montgomery
District Attorney Matthew Caplan
Assistant District Attorney
Covington, Louisiana ATTORNEYS FOR APPELLEES
The State of Louisiana BEFORE: WELCH, CHUTZ, AND LANIER, JJ. WELCH, J.
The State of Louisiana charged the defendant, Patrick David Spearman, by bill of information with one count of possession of 400 grams or more of cocaine, a violation of La. R.S. 40:967(F)(1)(c). The defendant pled not guilty. The defendant filed a motion to suppress evidence, which the trial court denied following a hearing. The defendant filed a writ application with this court, which was denied. State v. Spearman, 2018-0124 (La. App. 1 Cir. 3/6/18), 2018 WL 1168567 (unpublished writ action). The defendant then filed a writ application with the Louisiana Supreme Court, which was also denied. State v. Spearman, 2018-0489 (La. 4/20/18), 240 So. 3d 925. The defendant filed a motion to reopen the motion to suppress evidence with no objection from the State. The trial court again denied the motion to suppress evidence following a hearing. Thereafter, the defendant withdrew his prior plea of not guilty and, at a Boykin hearing, entered a plea of guilty pursuant to State v. Crosby, 338 So. 2d 584 (La. 1976), reserving his right to challenge all pretrial rulings. The trial court sentenced the defendant to ten years at hard labor in accordance with the plea deal agreement reached by the State and the defense. The defendant now appeals, challenging the trial court's denial of the motion to suppress evidence. For the following reasons, we affirm the defendant's conviction and sentence.
While Subsection (F) of La. R.S. 40:967 was repealed by 2017 La. Acts No. 281, § 3 (eff. Aug. 1, 2017), the law in effect at the time of the commission of the offense is determinative of the penalty which is to be imposed upon the convicted accused. See State v. Parker, 2003-0924 (La. 4/14/04), 871 So. 2d 317, 322.
In Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274 (1969), the United States Supreme Court emphasized three federal constitutional rights that are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront one's accusers. Because a plea of guilty waives these three fundamental rights of an accused, due process requires that the plea be a voluntary and intelligent waiver of these rights in order to be valid. See State v. Galliano, 396 So. 2d 1288, 1290 (La. 1981).
While a plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea, a plea under Crosby allows appellate review if, at the time the plea is entered, the defendant expressly reserves his right to appeal a specific adverse ruling in the case. Crosby, 338 So. 2d at 591.
STATEMENT OF FACTS
On January 18, 2017, Louisiana State Trooper Ryan Zimmerman was traveling westbound on I-12 in St. Tammany Parish when he saw a white SUV. As Trooper Zimmerman entered the median and waited with his windows down for the SUV to pass in front of him, he heard it pass over the rumble strips. The SUV was traveling below the speed limit, and there were no other vehicles in the area. Trooper Zimmerman pursued and caught up with the SUV, which at that time was traveling sixty-five miles per hour in a seventy miles-per-hour speed zone. As Trooper Zimmerman traveled in the left lane behind the SUV, he observed it cross the solid white line and heard the rumble strips again as the SUV veered about two feet onto the right shoulder. The SUV slowly veered back into the right lane, passing another trooper who was positioned on the right shoulder of the highway. As the SUV passed the other trooper's unit, Trooper Zimmerman initiated a traffic stop at approximately 1:31 a.m. for improper lane usage.
Louisiana Revised Statutes 32:79 provides:
Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply.
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
(2) The department may erect signs directing slow moving traffic to use a designated lane or designating those lanes to be used by traffic moving in a particular direction, and drivers of vehicles shall obey the directions of such signs.
Trooper Zimmerman exited his unit and approached the white SUV, which was occupied only by the defendant. The defendant rolled down his window as Trooper Zimmerman approached the passenger side and requested to view the defendant's driver's license and vehicle registration. The defendant provided Trooper Zimmerman with his Georgia driver's license and a stack of papers from the glove compartment. The defendant indicated that the white SUV was a rental car. Trooper Zimmerman noted the defendant's right hand was shaking as he retrieved the papers. For safety reasons, Trooper Zimmerman took the driver's license and stack of papers back to his unit to review them. The documents included the initial rental agreement by Amy Johnson of Lawrenceville, Georgia, a second rental agreement that extended the rental period to 10:00 a.m. of January 18, 2017,—the day of the stop—and a Wal-Mart money gram wire transfer for five hundred dollars to Juan Pablo Gonzales, to be picked up at any Wal-Mart in Texas. Trooper Zimmerman testified that in this geographic area, around I-12 and I-10, police see a high level of drug activity from "drug mules," and that it is common for these "drug mules" to rent vehicles in someone else's name to avoid identification and detection. Trooper Zimmerman also noted that the Wal-Mart money gram transfer involved two geographic areas—Georgia and Texas—that are "very big place[s] for narcotics." Trooper Zimmerman performed a criminal background check on the defendant and discovered that he had prior offenses of battery, armed robbery, and two counts of possession of cocaine.
After reviewing the information, Trooper Zimmerman returned to the SUV. The defendant indicated that he was returning from a wedding in Houston, Texas, and was on his way back to Georgia. The defendant further indicated that his wife, Amy Johnson, could not attend the wedding because she needed to work and take care of their children. Trooper Zimmerman testified that he found her absence "very odd." As Trooper Zimmerman questioned the defendant about the money wire transfer, Trooper Zimmerman noticed the defendant's nervousness escalate. Trooper Zimmerman observed that the defendant's carotid artery on the right side of his neck began to pulsate rapidly and that his manner of speech changed. The defendant told Trooper Zimmerman that Juan Pablo Gonzales was a friend to whom the defendant owed money. Trooper Zimmerman instructed the defendant to exit the SUV and asked the defendant if there were any illegal contents in the SUV, naming several possible forms of contraband, including marijuana, methamphetamine, and cocaine. The defendant did not specifically deny having cocaine in the SUV, instead stating he did not "do" cocaine. At approximately 1:41 a.m., Trooper Zimmerman asked for consent to search the SUV, which the defendant refused. Based on the defendant's evasive answers and the "totality of the circumstances," Trooper Zimmerman was suspicious that the stop involved more than a traffic violation and contacted a K-9 officer.
At approximately 1:51 a.m., twenty minutes after the stop was initiated, Senior State Trooper Ron Whitaker and K-9 State Trooper Shane Tilford arrived on the scene. Trooper Zimmerman informed the defendant that he would conduct a pat-down search for weapons, and as Trooper Zimmerman performed the pat-down, he updated Trooper Tilford as to what occurred after the stop. Trooper Tilford, who had immediately begun walking around the SUV with a flashlight and the canine, informed Trooper Zimmerman that the canine made a positive hit on the SUV approximately twenty-four and a half minutes into the stop. The defendant was informed of the hit and that the officers were going to search the SUV immediately. When Trooper Zimmerman began searching the back of the SUV, he saw a large suitcase and a large black bag, which he removed. As Trooper Zimmerman placed the black bag back into the SUV and unzipped the bag, the defendant stated, "Hey, that's only dirty clothes in there, there's nothing in there, don't worry about that." The bag contained a "brand-new camouflage hat of the United States Marine Corps with the tag still on it" and dirty clothes commingled with twelve bundles of compressed suspected cocaine. The defendant was placed under arrest at approximately 2:06 a.m., and Trooper Tilford read the defendant his Miranda rights. At Troop L, Trooper Dennis Joseph Indest performed a field test and subsequently sent the suspected cocaine to the crime lab for chemical analysis. According to Trooper Zimmerman, the substance tested positive for cocaine. The SUV also contained six cell phones, four of which were boost flip phones common among "drug mule runners," and several money gram transfer documents similar to the one already recovered. The stop of the defendant lasted approximately thirty-five minutes before he was arrested.
Prior to any questioning, the person must be warned that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966).
MOTION TO SUPPRESS
In his sole assignment of error, the defendant claims the trial court erred in denying his motion to suppress evidence. Specifically, the defendant argues that there was no reasonable suspicion for Trooper Zimmerman to extend the traffic stop of the defendant based on the "totality of the circumstances."
Initially, we note that these exact issues were reviewed in a writ application filed with this court. In State v. Spearman, 2018-0124 (La. App. 1 Cir. 3/6/18), 2018 WL 1168567 (unpublished writ action), the defendant sought review of the denial of his motion to suppress, which this court denied. Although a pretrial determination does not absolutely preclude a different decision on appeal, judicial efficiency demands that this court accord great deference to its pretrial decisions unless it is apparent, in light of a subsequent trial record, that the determination was patently erroneous and produced an unjust result. State v. Chandler, 2016-1000 (La. App. 1 Cir. 12/22/16), 2016 WL 7407415, at *2 (unpublished). Nonetheless, we elect to discuss briefly the merits of the defendant's argument.
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, Section 5 of the Louisiana Constitution protect persons 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. C.Cr.P. art. 703(A). The State bears the burden of proving admissibility when a defendant files a motion to suppress evidence seized without a warrant. La. C.Cr.P. art. 703(D). A trial court's ruling on a motion to suppress the evidence is entitled to great weight because the trial court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Legendre, 2008-2486 (La. App. 1 Cir. 10/27/09), 2009 WL 3447275, at *2 (unpublished).
Pursuant to the investigatory stop recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), a police officer may briefly seize a person if the officer has an objectively reasonable suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal conduct or is wanted for past criminal acts. Louisiana Code of Criminal Procedure article 215.1(A) provides that an officer's reasonable suspicion of crime allows a limited investigation of a person. However, reasonable suspicion is insufficient to justify custodial interrogation even though the interrogation is investigative. Legendre, 2009 WL 3447275, at *2.
As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. The standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. Even relatively minor traffic violations may provide an objective basis for lawfully detaining the vehicle and its occupants. Id.
During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and the issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity. La. C.Cr.P. art. 215.1(D).
Given the fact-intensive nature of the inquiry into whether a detention constitutes an investigatory stop, by its nature a brief encounter between the police and a citizen based on reasonable suspicion of criminal activity, or an arrest, an extended restraint on liberty that requires a greater showing of probable cause, courts have been unable to develop a bright-line test to determine when police-citizen encounters exceed the bounds of mere Terry stops. Because there is no scientifically precise formula that enables courts to distinguish between valid investigatory stops and other detentions that the law deems sufficiently coercive to require probable cause, a court inquiring into the nature of a forcible detention must examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. Legendre, 2009 WL 3447275, at *3.
We initially note the defendant's reliance on Byrd v. U.S., ___ U.S. ___, 138 S. Ct. 1518, 200 L. Ed. 2d 805 (2018), is misplaced. (Defense brief, pp. 6-7). In Byrd, the United States Supreme Court held that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy. See Byrd, 138 S. Ct. at 1531. Standing, however, was at issue in relation to the defendant's reasonable expectation of privacy in a rental car, and the issue in the instant case is whether the initial stop of the defendant was prolonged so as to constitute a de facto arrest. See Id. at 1525.
At the hearing on the motion to suppress the evidence, the State called Trooper Zimmerman to testify, entered the dash cam video from his encounter with the defendant into evidence, and played the video.
There was no error in the trial court's denial of the defendant's motion to suppress the evidence. As the trial court stated when it denied the defendant's motion to suppress evidence, the traffic stop of the SUV driven by the defendant was supported by probable cause to believe he had violated La. R.S. 32:79, improper lane usage. See Whren v. U.S., 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996). The defendant claims he was cooperative during the traffic stop, he satisfactorily answered Trooper Zimmerman's questions, he was an authorized driver on the rental car, and the dash cam video reveals he was not as nervous during the stop as Trooper Zimmerman claimed. Trooper Zimmerman testified that the defendant properly answered questions up to the point of the defendant's answers to the questions regarding drugs. The defendant, however, omits that Trooper Zimmerman then immediately explained that his suspicions were aroused by the defendant's evasive answers to direct questions regarding whether the defendant had drugs in his SUV, as well as by the defendant's attendance of his friend's wedding without his family, the rental agreement's similarity to agreements used by "drug mules," and his increasing nervousness when asked about the Wal-Mart money gram. Trooper Zimmerman agreed on cross-examination that there was no indication on the rental agreement that the defendant was not authorized to drive the SUV, but pointed out that the defendant and his wife had different last names, and the rental agreement did not specify whether there was an authorized driver. Trooper Zimmerman disagreed with defense counsel's insistence that the defendant was not "showing any visible signs of nervousness" on the dash cam video and explained that he heard the defendant's voice changing, saw him shaking, and saw his carotid artery pulsing.
Trooper Zimmerman diligently pursued this investigation, and the duration of the stop did not transform the encounter into a de facto arrest. Trooper Zimmerman's actions following the stop were reasonably responsive to the circumstances justifying the stop in the first place, as augmented by information he gleaned during the stop. See Legendre, 2009 WL 3447275, at *3. The physical intrusiveness of the defendant's detention did not intensify as the duration of the stop expanded to accommodate Trooper Zimmerman's growing suspicions of criminal activity. Until the discovery of the cocaine, the defendant was not handcuffed or restrained, circumstances which might have suggested during the lengthening delay that a de facto arrest had taken place. See Id.; see also State v. Turner, 2013-0180 (La. 3/1/13), 108 So. 3d 753, 753-54 (per curiam) (delay of approximately sixty minutes for a K-9 unit to arrive was not unreasonable and not attributable to any lack of diligence on the part of the officer, where the officer reasonably suspected the defendant of being a drug courier and immediately requested the K-9 unit contemporaneously with or very soon after seizing the defendant). Trooper Zimmerman had an objective and articulable basis for detaining the SUV to maintain the status quo for the twenty minutes it took for Trooper Tilford to arrive with the K-9 unit, a means of investigation likely to confirm or dispel the officer's suspicions quickly. In denying the defendant's motion to suppress evidence, the trial court noted that Trooper Zimmerman called the K-9 unit immediately after the defendant refused to give his consent to a search of his SUV. The dog's sniff test on the SUV's exterior surfaces did not itself constitute a search, and the moment the dog alerted, the officers had probable cause to search the SUV. Exigent circumstances arising from the detention of a vehicle on the open road excused the lack of a warrant. See Legendre, 2009 WL 3447275, at *3.
With regard to the defendant's argument that Rodriguez v. U.S., ___ U.S. ___, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015), applies, we note that the trial court distinguished the instant case from Rodriguez by noting that in Rodriguez, the officer did not articulate "any additional information about suspicious activity" before he violated the defendant's Fourth Amendment rights by continuing the detention of the defendant. The trial court contrasted the instant case and explained it believed reasonable suspicion existed for Trooper Zimmerman to continue the investigation beyond the original traffic stop by detaining the defendant for the K-9 unit to arrive. We also note that the second circuit and the Federal Fifth Circuit have upheld prolonged detentions when officers utilized their experience and training to identify evidence that a vehicle contained drugs, holding that Rodriguez has limited relevance in cases in which reasonable suspicion has been established. See U.S. v. Davis, 620 Fed. Appx. 295, 299 (5th Cir. 2015); State v. Manning, 50,591 (La. App. 2 Cir. 5/18/16), 196 So. 3d 626, 633-34. Accordingly, this assignment of error is without merit.
In Rodriguez, the United States Supreme Court held that a dog sniff conducted after the issuance of a traffic citation prolonged the stop and did not fall within the de minimus rule. Rodriguez, 135 S. Ct. at 1616. The Court declined to address whether reasonable suspicion developed during the stop would have justified prolonging the detention; it remanded for further proceedings on the issue. Id. at 1616-17. --------
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.