Opinion
NO. 2012-KA-0647
05-15-2013
STATE OF LOUISIANA v. REBEKAH E. WOLFE
Leon A. Cannizzaro, Jr. District Attorney Scott G. Vincent Assistant District Attorney COUNSEL FOR APPELLEE, THE STATE OF LOUISIANA Christopher A. Aberle LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT, REBEKAH E. WOLFE
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 503-572, SECTION "C"
Honorable Benedict J. Willard, Judge
Judge Dennis R. Bagneris , Sr.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Roland L. Belsome, Judge Madeleine M. Landrieu)
BELSOME, J., DISSENTS WITH REASONS
Leon A. Cannizzaro, Jr.
District Attorney
Scott G. Vincent
Assistant District Attorney
COUNSEL FOR APPELLEE, THE STATE OF LOUISIANA
Christopher A. Aberle
LOUISIANA APPELLATE PROJECT
COUNSEL FOR DEFENDANT/APPELLANT, REBEKAH E. WOLFE
CONVICTION AND SENTENCE AFFIRMED
Rebekah Wolfe entered a Crosby plea to one count of possession with intent to distribute heroin, in violation of La. R.S. 40:966 (C)(1), maintaining her right to appeal the trial court's denial of her motion to suppress.
State v. Crosby, 338 So. 2d 584 (La. 1976). A Crosby plea allows a criminal defendant to condition his plea upon the reservation for appellate review of specified pre-plea errors despite the fact that a guilty plea otherwise waives all non-jurisdictional defects.
FACTS
On January 30, 2011, Rebekah Wolfe was charged by bill of information with one count of possession with intent to distribute heroin, in violation of La. R.S. 40:966 (C)(1). Ms. Wolfe pled not guilty. Thereafter, the trial court held a preliminary hearing and found sufficient probable cause for the arrest and subsequently denied Ms. Wolfe's motion to suppress the evidence. Ms. Wolfe later pled guilty under State v. Crosby to the heroin charge and also pled guilty to the multiple bill. Ms. Wolfe was sentenced to ten years hard labor to run concurrently with any other sentences and with credit for time served. Ms. Wolfe now appeals.
Due to the instant heroin charge and a prior drug conviction (cocaine conviction in 2005), Ms. Wolfe was multiple billed as second felony offender.
At the suppression hearing, Officer Gus James of the New Orleans Police Department testified that on January 30, 2011, at 2:44 p.m., both he and his partner, Officer Nigel Daggs, observed a car driving without a front bumper and with a cracked windshield. The officers conducted a traffic stop at the intersection of Crane Street and Robert E. Lee Blvd., in New Orleans. Officer James testified that he identified the occupants of the vehicle as Ms. Wolfe, who was the driver, and a male passenger, Daryl Joseph Richard. Officer James testified that he requested license and registration from Ms. Wolfe in order to issue her a citation for violating the city ordinance, which required vehicles to have bumpers.
Officer James testified that during the interaction, he personally observed Ms. Wolfe move in a forward motion and then shove something in her waistband. Officer James testified that although he did not observe what Ms. Wolfe stuffed into her pants, her "shoving motion towards her waistband," led him to believe that Ms. Wolfe was attempting to conceal weapons or contraband. Officer James then requested both occupants to exit the vehicle. Officer James performed a pat down, but he requested that a female officer be dispatched to the scene to conduct a weapons frisk on Ms. Wolfe. Officer Daggs conducted a pat down on Mr. Richard, which did not produce any weapons or contraband.
Shortly thereafter, a female officer, Officer Robyn Scott, performed a pat down on Ms. Wolfe, and observed a plastic bag sticking out from the front waistband area of her pants. Officer Scott removed the plastic and observed that the plastic was clear and contained twelve individually wrapped packets of foil. Officer Scott then handed the plastic and its contents over to Officer James. Officer James then advised Ms. Wolfe of her narcotics violation and Mirandized her. Officer James then performed testing on a sample of the materials contained in the foil. A sample of the substance contained in the foil packets tested positively for heroin.
A review of the record reveals that there are no errors patent.
DISCUSSION
In her sole assignment of error, Ms. Wolfe argues that the trial court erred in its determination that the evidence in this matter was legally seized.
The Fourth Amendment to the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. The exclusionary rule bars physical and verbal evidence obtained either during or as a direct result of an unlawful search or seizure. Wong Sun v. United States, 371 U.S. 471, 484, 835 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).
In determining whether reasonable suspicion exists to conduct an investigatory stop, courts must take into account the totality of the circumstances in a process that allows police officers to draw upon their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might elude an untrained person. State v. Kirton, 2011-1201, p. 1 (La. 6/24/11), 66 So. 3d 431, 432, citing State v. Fearheiley, 2008-0307, p. 1 (La. 4/18/08), 979 So. 2d 487, 488. The determination of whether reasonable suspicion exists 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. Elliott, 2009-1727, p. 5 (La. 3/16/10), 35 So. 3d 247, 251, quoting State v. Landry, 98-3008, p. 5 (La. 1/8/99), 729 So.2d 1019, 1022. Furthermore, pursuant to State v. Jones, 1999-0861 (La. App. 4 Cir. 6/21/00), 769 So. 2d 28, 38:
If a police officer stops a person whom he reasonably suspects is committing, has committed, or is about to commit a crime, pursuant to La. C.Cr.P. art. 215.1(A), and reasonably suspects he is in danger, the officer may frisk the outer clothing of such person for a dangerous weapon. La. C.Cr.P. art. 215.1(B). If he reasonably suspects that the person possesses a dangerous weapon, he may search the person. La. C.Cr.P. art. 215.1(B); State v. Curtis, 96-1408, pp. 2-3 (La.App. 4 Cir. 10/2/96), 681 So.2d 1287, 1289.
Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe that a traffic violation has occurred. State v. Waters, 2000-0356, p. 4 (La. 3/12/01), 780 So.2d 1053, 1056, citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). An officer making a traffic stop may order the driver (as well as passengers) out of a vehicle pending completion of the stop. Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997); State v. Benoit, 2001-2712, p. 6 (La. 5/14/02), 817 So.2d 11, 15.
As a general rule, this Court reviews trial court rulings under a deferential standard with regard to factual and other trial determinations, while legal findings are subject to a de novo standard of review. State v. Hunt, 2009-1589, p. 6 (La. 12/1/09), 25 So. 3d 746, 751, citing State v. Hampton, 98-0331, p. 18 (La.4/23/99), 750 So.2d 867, 884. Furthermore,
This court re-examined the standard which a reviewing court must apply to determine the correctness of a trial court's decision relative to the suppression of evidence. State v. Wells, 2008-2262, p. 4-5 (La.7/6/10); 45 So.3d 577, 580-581. Initially, the State bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence. La.C.Cr.P. art. 703(D).7 The trial court's ruling on the matter must be afforded great weight and will not be set aside unless there is an abuse of discretion. Wells, 2008-2262, p. 5; 45 So.3d at 581.State v. Thompson, 2011-0915, p. 13 (La. 5/8/12), 93 So. 3d 553, 563, reh'g denied (June 29, 2012).
In the instant case, the lack of a front bumper on the vehicle Ms. Wolfe was driving was in violation of the New Orleans Municipal Code No. 154-1251. The Ordinance, found in the Municipal Code Chapter 154 § 1251, entitled Traffic and Vehicles, reads in pertinent part:
a) Every vehicle operated in this parish shall comply with all equipment requirements of state law and involving vehicles traveling on state highways, and particularly requirements of Title 32, known as the Louisiana Highway Regulatory Act, relative to driver responsibility for maintaining on the vehicle adequate headlights, backup lights, stop lights, braking equipment, taillamps, reflectors, electric turn signals, horns, windshield wipers, mirrors, safety glass, tires, fuel tank caps, fenders, mud guards, and all other equipment required by state law at the time and in the manner provided for by such statutes, in addition to requirements now imposed by this chapter.
The provisions of the ordinance provided sufficient justification for Officers James and Daggs to stop the vehicle and conduct a traffic stop due to the missing bumper. During the course of the traffic stop and upon being asked to produce her license and registration, Ms. Wolfe exhibited unusual movements and gave the officers reasonable suspicion to believe that she may have been concealing a weapon or contraband. See State v. Bridges, 2011-1666 (La. App. 4 Cir. 11/28/12), 104 So.3d 657 (where this Court found that during a traffic stop, the police officer was justified in ordering the occupants out of their vehicle and searching under the passenger seat, where the officer had observed a passenger putting something under that seat.) Hence, the pat down search by Officer Scott, which produced the plastic concealed in Ms. Wolfe's waistband - the same area Officer James observed her action of trying to conceal something - was justified. Even though Officer Scott did not testify, the pat down was lawful, and the plastic sticking out of the suspect's waistband would have been inevitably discovered during the pat down. As this Court has held, evidence need not be suppressed if it would have inevitably been discovered on lawful grounds. State v. Jones, 98-0963 (La. App. 4 Cir. 6/24/98), 720 So.2d 1, 7 citing State v. Ballon, 97-2036 (La. App. 4 Cir. 11/12/97), 703 So.2d 130.
Officer Scott is the female officer who was called to the scene.
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Thus, because the evidence in this matter was lawfully seized, the trial court did not err by denying the motion to suppress. Accordingly, we hereby affirm Ms. Wolfe's conviction and sentence.