Opinion
2012 KA 0615
11-02-2012
STATE OF LOUISIANA v. KELLY BARNES
Walter P. Reed Lewis V. Murray, III Franklinton, LA Counsel for Appellee, State of Louisiana Kathryn Landry Baton Rouge, LA Jerry Fontenot Covington, LA Counsel for Defendant/Appellant, Kelly Barnes
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Second Judicial District Court
In and for the Parish of Washington, State of Louisiana
Trial Court Number 08 CR3 99918
Honorable Raymond Childress, Judge Presiding
Walter P. Reed
Lewis V. Murray, III
Franklinton, LA
Counsel for Appellee,
State of Louisiana
Kathryn Landry
Baton Rouge, LA
Jerry Fontenot
Covington, LA
Counsel for Defendant/Appellant,
Kelly Barnes
BEFORE: WHIPPLE, McCLENDON AND HIGGINBOTHAM, JJ.
WHIPPLE, J.
The defendant, Kelly Barnes, was charged by bill of information with possession with intent to distribute cocaine, a violation of LSA-R.S. 40:967(A)(1) (count 1), and possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1 (count 2). In a separate bill of information, the defendant was charged with simple escape, a violation of LSA-R.S. 14:110. He pled not guilty. The defendant filed a motion to suppress the evidence and, following a hearing on the matter, the motion was denied. Thereafter, the defendant withdrew his prior plea of not guilty and, at a Boykin hearing, entered a plea of guilty to the charges, reserving his right to challenge the trial court's ruling on the motion to suppress. See State v. Crosby, 338 So. 2d 584 (La. 1976). For the conviction of possession with intent to distribute cocaine, the defendant was sentenced to five years imprisonment at hard labor, with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence; for the conviction of possession of a firearm by a convicted felon, the defendant was sentenced to ten years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. These two sentences (counts 1 and 2) were ordered to run concurrently. For the simple escape conviction, the defendant was sentenced to one year at hard labor, with the sentence to run consecutively to his other sentences. The defendant now appeals, designating one assignment of error. We affirm the convictions and sentences.
FACTS
The following facts are derived from the testimony of two police officers at the defendant's motion-to-suppress hearing. According to the testimony of Lieutenant Scott Crane and Detective William Brumfield, both with the Washington Parish Sheriff's Office and part of a drug task force, on April 30, 2008, they were patrolling together around 11 p.m. in an unmarked police unit near Second Avenue and Fourth Street in Bogalusa. They passed the defendant, who was driving a Toyota Camry in the opposite direction. Kaunda Magee was riding with the defendant in the front passenger seat. The officers heard loud music coming from the Camry. Lieutenant Crane, who was driving, turned around to follow the defendant, and activated on the emergency lights. The defendant continued driving at a slow rate of speed. The officers observed both occupants of the Camry continually moving around in the vehicle. After a short distance, the defendant turned left onto Deloraine Street and stopped shortly thereafter. Lieutenant Crane approached on the driver's side and Detective Brumfield approached on the passenger side. The Camry was still running while the defendant and Magee continued their movement inside the vehicle. Lieutenant Crane drew his weapon and ordered them to stop moving and put their hands up. They complied and were removed from the vehicle. The defendant was handcuffed, but not arrested. When Lieutenant Crane asked the defendant for his driver's license, the defendant told him that he did not have one and that his license was suspended. The defendant was arrested for driving without a license. When Magee was removed from the vehicle, the passenger door remained open, and Detective Brumfield could see a handgun between the seat and the passenger door. The detective seized the gun and arrested Magee. Detective Brumfield searched the vehicle and found another handgun under the front seat on the passenger side. Both guns were .45 semi-automatic pistols. Detective Brumfield also found a bag of crack cocaine on the ground near the passenger-side doors.
The crime lab report in the record indicates the bag contained 3.62 grams of cocaine.
The facts concerning the defendant's conviction of simple escape are not part of the record.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues the trial court erred in denying the motion to suppress the evidence. Specifically, the defendant contends that the warrantless search of the vehicle and the subsequent seizure of the handguns were not conducted pursuant to any of the well-recognized exceptions to the warrant requirement and, therefore, were illegal. The defendant in his brief appears to address only the seizure of the handguns. However, for completeness, we will consider the seizure of both the handguns and the crack cocaine.
Trial courts are vested with great discretion when ruling on a motion to suppress. State v. Long. 2003-2592 (La. 9/9/04), 884 So. 2d 1176, 1179, cert. denied, 544 U.S. 977, 125 S. Ct. 1860, 161 L. Ed. 2d 728 (2005). 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, Le, 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 right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. 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). At the motion-to-suppress hearing, Lieutenant Crane testified that as he passed the defendant in his unmarked police unit, he could hear loud music coming from the defendant's car. The Lieutenant noted that playing music that loud is a city offense. Based on this occurrence, Lieutenant Crane had probable cause to believe that a violation had occurred. Accordingly, he had an objectively reasonable basis for stopping the vehicle the defendant was driving. LSA-C.Cr.P. art. 215.1; see State v. Kalie, 96-2650 (La. 9/19/97), 699 So. 2d 879, 881 (per curiam).
The defendant contends that any search of the vehicle incident to arrest was illegal. The defendant also argues that the first handgun seized from the vehicle could not have been validly seized pursuant to the "plain view" doctrine because the gun was not immediately apparent as contraband. Finally, the defendant argues that the guns could not have been seized pursuant to a valid inventory search.
The Fourth Amendment to the United States Constitution and article I, § 5 of the Louisiana Constitution protects people against unreasonable searches and seizures. 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. LSA-C.Cr.P. art. 703(D). 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.
Probable cause to believe contraband is present is necessary to justify a warrantless search. 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. Mere probable cause does not provide the exigent circumstances necessary to justify a search without a warrant. In determining whether sufficient exigent circumstances exist to justify the warrantless entry and search or seizure, the court must consider the totality of the circumstances and the inherent necessities of the situation at the time. Further, the scope of the intrusion must be circumscribed by the exigencies that justified the warrantless search. See State v. Warren, 2005-2248 (La. 2/22/07), 949 So. 2d 1215, 1224. Exigent circumstances may arise from the need to prevent the offender's escape, minimize the possibility of a violent confrontation which could cause injury to the officers and the public, and preserve evidence from destruction or concealment. State v. Brisban, 2000-3437 (La. 2/26/02), 809 So. 2d 923, 927-28.
However, under the automobile exception to the warrant requirement, a police officer can search a vehicle based on probable cause alone. The United States Supreme Court in Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S. Ct. 2013, 2014, 144 L. Ed. 2d 442 (1999) (per curiam), held that under the "automobile" exception, there is no separate exigency requirement:
The Fourth Amendment generally requires police to secure a warrant before conducting a search. California v. Carney, 471 U.S. 386, 390-391, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). As we recognized nearly 75 years ago in Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925), there is an exception to this requirement for searches of vehicles. And under our established precedent, the "automobile exception" has no separate exigency requirement. We made this clear in United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), when we said that in cases where there was probable cause to search a vehicle "a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained." (Emphasis added.) In a case with virtually identical facts to this one (even down to the bag of cocaine in the trunk of the car), Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam), we repeated that the automobile exception does not have a separate exigency requirement: "If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more." Id., at 940, 116 S.Ct. 2485.If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle. Ross, 456 U.S. at 825, 102 S. Ct. at 2173.
Lieutenant Crane had the right to conduct a routine license and registration check and to engage respondent in conversation as he did so. See State v. Lopez, 2000-0562 (La. 10/30/00), 772 So. 2d 90, 92-93 (per curiam). The defendant suggests in his brief that his license was not suspended. As such, the defendant argues, his arrest was invalid. At the motion-to- suppress hearing, defense counsel showed Lieutenant Crane a document, not identified or proffered for appellate review, that, according to the question posed by defense counsel, "shows that [the defendant] paid the court suspension in '07." On the record before us, we find this limited information presented by defense counsel in the form of a statement urged by counsel while conducting the questioning of a witness, to be unsubstantiated by the record and lacking any degree of evidentiary value regarding the validity of the defendant's driver's license. In any event, Lieutenant Crane proceeded according to the information presented to him at the time he removed the defendant from the vehicle and spoke to him. The defendant personally told the officer that he did not have a license and that it was suspended. The defendant was unable to produce any form of identification. Accordingly, Lieutenant Crane was well within the confines of the law to arrest the defendant for driving without a license. See State v. Sherman, 2005-0779 (La. 4/4/06), 931 So. 2d 286, 290-91; LSA-R.S. 32:402.
In Arizona v. Gant, 556 U.S. 332, 351, 129 S. Ct. 1710, 1723, 173 L. Ed. 2d 485 (2009), the Supreme Court held that the police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. In his brief, the defendant contends a search incident to arrest would have been illegal because the occupants were "clearly well away" from the vehicle to be within any realistic reaching distance. Further, according to the defendant, since the arrest was based on a suspended driver's license, the officers would have had no reasonable belief that the vehicle contained evidence pertaining to such an arrest.
While we agree that there would be no reasonable belief that the vehicle contained evidence of the offense of a suspended driver's license, we do not agree that a search incident to arrest was invalid because the occupants were "clearly well away" from the vehicle. Our review of the record indicates that, while the defendant was handcuffed and moved some distance from the vehicle, the record is not clear that Magee was handcuffed or moved any distance from the vehicle. Lieutenant Crane testified that while Detective Brumfield searched the vehicle, Lieutenant Crane had "walked [the defendant] back away from the car at some point." The defendant had not yet been placed in a police unit. Detective Brumfield, on the other hand, testified that after he removed Magee from the vehicle, he observed Lieutenant Crane handcuff the defendant to detain him. Following the arrest of the defendant, Detective Brumfield began searching the vehicle. The following exchange took place regarding the search and Magee's location:
Q. What did the search entail? What did you do?
A. Upon my going back to the passenger side of the car, which the door was still open from when Mr. Magee exited, I saw a semiautomatic weapon sticking just down by the seat.
Q. So did you have to search to see that?
A. No, sir; not for that particular one. No, sir.
Q. So the car door was still open? Is that what you're --
A. That's correct.
Q. Where was Mr. Magee and Mr. Barnes at this point?
A. Mr. Magee, at that point, the other officers had arrived and they had actually had him step away from the rear of Mr. Barnes' car.
Magee was not arrested until the detective found the gun in the vehicle. Thus, during Detective Brumfield's search of the vehicle, Magee apparently was not handcuffed and was standing somewhere near the vehicle. As noted above, the officers were in a high crime area at night, and the constant, suspicious movements by the defendant and Magee while being followed and even after being stopped, warranted legitimate cause for alarm. In the following exchange, Lieutenant Crane described what he observed as he was effecting the traffic stop:
Q. After you turned the lights on, but before they stopped, were you observing the vehicle in front of you?
A. Yes, sir.
Q. Did you observe anything unusual going on in the vehicle?
A. Pretty much, from the time we got to them and turned the lights on, once we turned the lights on, both occupants -- we could best to tell there was two of them, a driver and a front passenger - they never stopped moving.
They were like -- it was almost like they were fighting at some
times. They were just back and forth toward each other, going down. One would come back up.
Even after we -- even after they pulled over, they continued to do that to the point to where it was obvious, to me, something wasn't right. And I acknowledged it to Detective Brumfield as we were getting out of the vehicle to be watching the passenger real close, too.
Detective Brumfield testified as follows regarding the stop:
Q. Once the vehicle stopped, did you and Detective Crane have any conversation about approaching the vehicle?
A. No, sir.
Q. What did y'all do?
A. Lieutenant Crane actually exited his vehicle from his driver's side. And as I recall, we both kind of simultaneously went to the rear of the vehicle.
And from there, we kind of, you know, went on probably about a 45 degree angle just to kind -- because we didn't know what was going on with all the movement and what have you and approached the vehicle.
Q. Were you suspicious of the activity that you had seen in the vehicle?
A. Absolutely.
Q. Were you concerned about your safety, as well?
A. Yes, sir; my safety.
Under these circumstances, where, during the search of the vehicle, neither suspect had been placed in a police unit, only one of them was handcuffed, and Magee may have been standing quite close to the vehicle until other officers arrived and backed him away, we cannot say that a protective search for weapons incident to the defendant's arrest was unreasonable under Gant. See State v. Harris, 2011-0779 (La. App. 1st Cir. 11/9/11), 79 So. 3d 1037, 1043-44; State v. Heard, 46,230 (La. App. 2nd Cir. 5/18/11), 70 So. 3d 811, 816-18, writ denied, 2011-1291 (La. 12/2/11), 76 So. 3d 1175. Cf Gant, 556 U.S. at 335, 129 S. Ct. at 1714, where, after Rodney Gant was arrested for driving with a suspended license, he was handcuffed and "locked in the back of a patrol car" before his car was searched.
Moreover, we find that the first handgun found by Detective Brumfield during his initial search of the vehicle was in plain view before it was seized. Under the "plain view" doctrine, if police are lawfully in a position from which they view an object that has an incriminating nature which is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. Horton v. California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 2307-08, 110 L. Ed. 2d 112 (1990). A seizure is reasonable under the "plain view" doctrine if the officer has probable cause to believe the item seized was associated with criminal activity. State v. Bush, 2012-0720 (La. 6/1/12), 90 So. 3d 395, 396 (per curiam).
As noted above, Detective Brumfield did not have to search the vehicle before he saw the first handgun. With the passenger door still open after having removed Magee, Detective Brumfield saw the gun stuck between the seat and the door molding (where the floorboard curves up at the door). The detective even noted in his report that the gun was found in plain view. On cross-examination, he was asked, "And I guess, are you aware that, in your statement, you know, and I realize this was a while ago, that you had said that one of the guns was in plain view; is that correct?" Detective Brumfield replied, "That's correct."
The defendant argues in his brief that the "plain view" doctrine is inapplicable because Detective Brumfield returned to the vehicle to search before he saw the gun in plain view. Therefore, according to the defendant, the detective had "no rightful presence" at the vehicle. This assertion is meritless. The occupants were removed from the vehicle for a traffic violation, and the defendant was arrested shortly thereafter for driving without a license. In furthering their investigation, given the defendant's and Magee's suspicious behavior before being stopped, both officers clearly had the right to be at or near the vehicle, or even to "return" to the vehicle. See U.S. v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989); State v. Miller, 2000-1657 (La. 10/26/01), 798 So. 2d 947, 949-51 (per curiam).
The defendant also argues in his brief that the first gun seen by Detective Brumfield, even if in plain view, could not have been legally seized because the incriminating character of the gun was not immediately apparent. We do not agree. Because the probable cause analysis accounts for the totality of the circumstances, which included the officers' experience on the drug task force; the very high crime area they were in at night; the panicked, furtive gestures of the defendant and Magee wherein they were observed repeatedly moving up and down and bending over in their seats as the defendant continued to drive, refusing to stop; and the continued suspicious movements even after the vehicle was stopped and the officers approached on foot, it was reasonable for Detective Brumfield to believe that the handgun he saw was contraband or evidence that the defendant and Magee only moments before sought to conceal. See Bush, 90 So. 3d at 396. See also State v. Kirton, 2011-1201 (La. 6/24/11) 66 So. 3d 431, 432 (per curiam). Thus, when Detective Brumfield removed Magee from the vehicle, his observation of a gun "sticking just down by the seat," only heightened his suspicion and warranted seizure of the gun. See Horton, 496 U.S. at 135-36, 110 S. Ct. at 2307; State v. Lee, 2002-0704 (La. App. 5th Cir. 12/30/02), 836 So. 2d 589, 595-96, writ denied, 2003-0535 (La. 10/17/03), 855 So. 2d 755; State v. Stamp, 98-193 (La. App. 5th Cir. 7/28/98), 718 So. 2d 531, 532-34; State v. Gervais, 546 So. 2d 215, 218-19 (La. App. 4th Cir. 1989). See also State v. Sanchez, 617 So. 2d 948, 950 (La. App. 4th Cir. 1993) (where, under the plain view doctrine, the police officer was justified in retrieving a firearm from under the seat of the vehicle at least for purposes of investigating the firearm to see if it was legal).
Detective Brumfield testified he thought Detective Crane had advised that both the defendant and Magee were felons. Since it is illegal for a convicted felon to possess a firearm, see LSA-R.S. 14:95.1, the incriminating nature of the gun would have been immediately apparent. See State v. Ellis, 94-599 (La. App. 5th Cir. 5/30/95), 657 So. 2d 341, 360, writ denied, 95-2095 (La. 12/8/95), 664 So. 2d 421, writ denied, 95-1639 (La. 1/5/96), 666 So. 2d 300. However, it is not clear from the record if Detective Brumfield had information that Magee was a felon before or after he found the first gun. In any event, under the plain view doctrine, Detective Brumfield lawfully seized the first gun. At this point (if not sooner), Detective Brumfield clearly had probable cause to search the vehicle for more weapons. Thus, when he found the second handgun underneath the front seat on the passenger side, he legally seized it pursuant to the automobile exception to the warrant requirement. See Lee, 836 So. 2d at 595-96. Moreover, we find that both handguns were legally seized by Detective Brumfield pursuant to the "public safety" exception. Detective Brumfield had a duty to the public to remove the guns from a place where they would be accessible to any passer-by. State v. Obran, 496 So. 2d 1132, 1134 (La. App. 4th Cir. 1986). See Brisban, 809 So. 2d at 927-28; State v. Brumfield, 2005-2500 (La. App. 1st Cir. 9/20/06), 944 So. 2d 588, 595-98, writ denied, 2007-0213 (La. 9/28/07), 964 So. 2d 353.
The bag of crack cocaine rocks was found by Detective Brumfield on the ground a couple of feet from the passenger side of the vehicle. According to Detective Brumfield, the bag was a clear plastic bag, and according to Lieutenant Crane, the bag of crack cocaine "had some pretty good-sized rocks in it." Thus, because the drugs were in plain view and were clearly illegal contraband, the detective's warrantless seizure of the drugs was likewise reasonable under the "plain view" doctrine. See Horton. 496 U.S. at 135-137, 110 S. Ct. at 2307-08.
The defendant also argues in his brief that the search of the vehicle was not justified under the inventory search exception. Because we have already found that both the guns and the cocaine were legally seized, any discussion of whether the contraband was found pursuant to a valid inventory search is unnecessary.
The trial court did not err or abuse its discretion in denying the motion to suppress. Accordingly, the assignment of error is without merit.
SENTENCING ERROR
Under LSA-C.Cr.P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. See State v. Price. 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So. 2d 112, 123 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So. 2d 1277. After a careful review of the record, we have found a sentencing error.
For his possession of a firearm by a convicted felon conviction, the defendant was sentenced to ten years at hard labor without benefit of probation, parole, or suspension of sentence. Whoever is found guilty of violating the possession of a firearm by a convicted felon provision shall be imprisoned at hard labor for not less than ten nor more than fifteen years without benefits and be fined not less than one thousand dollars nor more than five thousand dollars. LSA-R.S. 14:95.1(B) (prior to its amendment by 2010 La. Acts No. 815, § 1). The trial court failed to impose the mandatory fine at sentencing. Accordingly, the defendant's sentence, which did not include the mandatory fine, is illegally lenient. However, since the sentence is not inherently prejudicial to the defendant, and neither the State nor the defendant has raised this sentencing issue on appeal, we decline to correct this error. See Price, 952 So. 2d at 124-25.
The minutes also reflect that no fine was imposed.
CONVICTIONS AND SENTENCES AFFIRMED.
2012 KA 0615
STATE OF LOUISIANA
VERSUS
KELLY BARNES
McCLENDON, J., concurs and assigns reasons.
While I am concerned about the failure of the trial court to impose the legislatively mandated fine, given the state's failure to object and in the interest of judicial economy, I concur with the majority opinion.