Opinion
NO. 2012 KA 0172
11-08-2012
STATE OF LOUISIANA v. JASON T. DUHE
Walter P. Reed District Attorney Covington, LA Attorneys for Plaintiff-Appellee, State of Louisiana Kathryn W. Landry Special Appeals Counsel Baton Rouge, LA Margaret Smith Sollars Thibodaux, LA Attorney for Defendant-Appellant, Jason T. Duhe
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court,
In and for the Parish of St. Tammany,
State of Louisiana
Trial Court No. 503047-3
Honorable Allison H. Penzato, Judge Presiding
Walter P. Reed
District Attorney
Covington, LA
Attorneys for Plaintiff-Appellee,
State of Louisiana
Kathryn W. Landry
Special Appeals Counsel
Baton Rouge, LA
Margaret Smith Sollars
Thibodaux, LA
Attorney for Defendant-Appellant,
Jason T. Duhe
BEFORE: WHIPPLE, McCLENDON, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM , J.
The defendant, Jason T. Duhe, was charged by bill of information with creation or operation of a clandestine laboratory for the unlawful manufacturing of methamphetamine, a violation of La. R.S, 40:983. The defendant pled not guilty. The defendant filed a motion to suppress the evidence seized and, following a hearing on the matter, the trial court denied the motion. Following a jury trial, the defendant was found guilty as charged. The State subsequently filed a multiple offender bill of information. Following a hearing on the matter, the defendant was adjudicated a third-felony habitual offender and sentenced to sixteen years imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant now appeals, designating as his only assignment of error, that the trial court erred by failing to suppress physical evidence gathered as the result of an illegal seizure. We reverse the trial court's ruling denying the motion to suppress, vacate the conviction and sentence, and remand to the trial court for further proceedings.
FACTS
On January 26, 2011, Detective Christopher Comeaux and his partner, Detective Julie Boynton, both with the St. Tammany Parish Sheriffs Office, were patrolling the Wal-Mart Supercenter on Natchez Drive in Slidell. Detective Comeaux, who was accepted at trial as an expert in the manufacture and distribution of methamphetamine, testified that he spent a lot of his time at this particular Wal-Mart because it had a pharmacy that sold pseudoephedrine, the main ingredient used to make methamphetamine. Pseudoephedrine is the main ingredient in Sudafed and other cold and allergy medicines. Also, Wal-Mart carried a large number of the other ingredients used to make methamphetamine, such as Coleman fuel, coffee filters, salt, Drano, lye, lithium batteries, and instant cold packs, which are used to obtain ammonia nitrate or sulfate. Detective Comeaux explained that he patrolled this Wal-Mart because of numerous complaints about people buying ingredients to make methamphetamine. According to the detective, pharmacies at different stores (e.g.,Walgreens and Wal-Mart) became integrated through the "NPLEx system" so that authorities could track a person's pseudoephedrine purchases from different stores. According to Detective Comeaux, this pharmacy-hopping to buy pseudoephedrine became known in the law enforcement community as "smurfing." People, therefore, who sought to buy pseudoephedrine for purposes of making methamphetamine, and were aware of the NPLEx system, began to go together to the same pharmacy and spread out to buy pseudoephedrine at different times. Detective Comeaux referred to this practice as a bit more intricate form of "smurfing."
On this particular day (January 26) when Detective Comeaux was walking past the pharmacy in Wal-Mart at about 4:30 p.m., he observed a man, later identified as Jimmy Catchings, buy a box of cold and allergy medicine. Pseudoephedrine can be purchased only from behind the pharmacy counter. Since Catchings's medicine had come from behind the counter, Detective Comeaux suspected it was pseudoephedrine. The detective also observed that another man, later identified as the defendant, was in the same pharmacy line as Catchings, but two or three people behind Catchings. The detective did not see what the defendant bought, or if he bought anything, because he continued to move throughout Wal-Mart looking for suspicious activity (i.e., in the sporting goods section where Coleman fuel is sold and the electronics section, where lithium batteries are sold). Finding no one in these sections, the detectives left Wal-Mart. Detective Comeaux observed the defendant get into a vehicle, a silver four-door sedan, which was occupied by Catchings. They were both in the back seat. Detective Comeaux suspected that because Catchings and the defendant were in the same line, and Catchings had probably purchased Sudafed, they were probably "smurfing" pseudoephedrine.
Detective Comeaux moved his vehicle to a different location for a better view of the sedan. As they watched the vehicle, a female, later identified as Deanne Wetzler, got out of the front passenger seat and went into Wal-Mart. Detective Comeaux then observed a man, later identified as Sky Hatcher, walking in the parking lot away from Wal-Mart. Hatcher approached the sedan, scanned the parking lot, then got into the vehicle. Detective Comeaux saw Hatcher talking to Catchings and the defendant. Then Hatcher and the defendant, according to Detective Comeaux, engaged in a hand-to-hand transaction. The detective saw one man hand what he believed to be money to the other, but he did not know what was being exchanged in return. Based on what he believed to be drug activity, Detective Comeaux pulled alongside the sedan, made contact with Hatcher and began questioning him. At this time, Wetzler was leaving Wal-Mart and walking back toward the sedan. She was carrying a Wal-Mart bag. The detectives took her bag, opened it, and saw that she had purchased Sudafed. The detectives then got the defendant and Catchings out of the vehicle, patted them down, and handcuffed the defendant. Detective Comeaux searched the vehicle and found a Wal-Mart bag, which had been tied in a knot, with forty Sudafed tablets in it and two empty Sudafed boxes with empty blister packs. The detective also found a $5 bill on the floorboard by the driver's seat. He found nothing else in the car that is used to make methamphetamine. Detective Comeaux Mirandized the defendant, then asked him what he was doing. The defendant said that he had purchased Sudafed for his sinuses. Upon further discussion, the defendant told the detective that Catchings had asked him to travel from Bogalusa to Slidell to purchase Sudafed. Detective Comeaux then arrested everyone for the creation or operation of a clandestine lab by purchasing pseudoephedrine with the intent that it be manufactured into an illicit drug.
Deanne Wetzler testified at trial that she had met the defendant the night before the day (January 26) they drove to Slidell and bought Sudafed. Wetzler lived in a Budget Inn Motel in Bogalusa, and the defendant lived in a motel room next to her. Prior to driving to Slidell, Wetzler and her boyfriend, Sky Hatcher, had talked to Catchings about driving to Wal-Mart in Slidell to buy Sudafed. The plan was that everyone would buy a box of Sudafed and give it to Catchings. Catchings then planned to sell the Sudafed tablets. According to Wetzler, Catchings was going to pay her $10 for buying the Sudafed, and pay Hatcher a bit more for his purchase of Sudafed. Wetzler testified that by the time all four of them were in the car to drive to Slidell, it was understood by all that they were going to Wal-Mart to buy Sudafed. Wetzler did not know what the defendant planned to do with his box of Sudafed. After Wetzler was arrested, she gave a written statement to the police, which provided, "I, Deanne Wetzler, bought a box of Sudafed in exchange for 10$ [sic]. I recieve [sic] a monthly check and needed the money."
The defendant testified at trial that he asked Hatcher if he could get a ride to Slidell to get medicine for his sinuses. Before they left for Slidell, his intent was to get sinus medicine, and he did not know what the others intended to do. The defendant testified that he knew nothing about the deal that Catchings had with Hatcher. According to the defendant, after he purchased his Sudafed, he went back to the car, put his Sudafed on the seat and began drinking a beer. Catchings began popping the Sudafed tablets out of the blisters from the box of Sudafed that he (Catchings) had purchased. At some point, Catchings began doing the same to the defendant's box of Sudafed, but the defendant was unaware of this. When the defendant finally noticed that Catchings had his box of Sudafed, the detectives had arrived and detained them. The defendant further testified that the $5 bill Detective Comeaux had found was his. The defendant stated that he was loaning Hatcher the $5 for a cold drink and pack of cigarettes. The defendant had prior convictions for possession with intent to distribute marijuana, simple possession of marijuana, attempted possession of a firearm by a convicted felon, vandalism (when he was in high school), contributing to the delinquency of a juvenile, and simple battery.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues the trial court erred in denying his motion to suppress the physical evidence. Specifically, the defendant contends that the investigatory stop of the defendant was unlawful because Detective Comeaux did not have reasonable suspicion the defendant had committed a crime. The evidence found pursuant to that stop was, therefore, illegally seized and should have been suppressed.
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. In determining whether the ruling on defendant's 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).
Article I, Section 5 of the Louisiana Constitution as well as the Fourth Amendment to the United States Constitution protect individuals from unreasonable searches and seizures. Under these provisions, and as a general rule, a search warrant is required to conduct a constitutionally permissible search. In Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), the Supreme Court held that a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. State v. Morgan, 2009-2352 (La. 3/15/11), 59 So.3d 403, 405-06. The Terry exception to the warrant requirement is codified in La. Code Crim. P. art. 215.1(A), which provides that 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.
In making a brief investigatory stop on less than probable cause to arrest, the police "'must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" State v. Kalie, 96-2650 (La. 9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). The police must therefore articulate something more than an inchoate and unparticularized suspicion or hunch. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). See Terry, 392 U.S. at 27, 88 S.Ct. at 1883. Determining whether "reasonable, articulable suspicion" existed requires weighing all of the circumstances known to the police at the time the stop was made. State v. Williams, 421 So.2d 874, 875 (La. 1982). See State v. Temple, 2002-1895 (La. 9/9/03), 854 So.2d 856, 859-60.
Not every encounter between a citizen and a policeman involves a "seizure." Terry, 392 U.S. at 19, n.16, 88 S.Ct. at 1879, n.16. However, when "a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Terry, 392 U.S. at 16, 88 S,Ct. at 1877. "As long as a reasonable person would feel free to disregard the encounter and walk away, there has been no 'seizure.'" State v. Ossey, 446 So.2d 280, 285 (La.), cert. denied, 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984) (quoting Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)); State v. Belton, 441 So.2d 1195, 1199 (La. 1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L,Ed.2d 543 (1984). See State v. Oliver, 457 So.2d 1269, 1271 (La. App. 1st Cir. 1984).
In the instant matter, Detectives Comeaux and Boynton approached the vehicle the defendant was in and had all three occupants removed from the vehicle. The defendant was then patted down "for officer safety" and placed in "flex style" handcuffs. We find that under these circumstances, the defendant was clearly seized within the meaning of the Fourth Amendment and would not have felt free to disregard the encounter and walk away. See Oliver, 457 So.2d at 1271.
The defendant asserts in his brief that Detective Comeaux did not have reasonable suspicion for the investigatory stop and detention of the defendant prior to searching the vehicle. According to the defendant, Detective Comeaux's observation of the defendant and another man (Catchings) standing in the pharmacy line, then later getting into the same car wherein a transfer of money took place, was not so suspicious as to justify a stop and search of each of the occupants of the vehicle. The defendant asserts that Detective Comeaux's seizure of the defendant and the others was based on nothing more than a hunch of criminal activity and that "the law requires more than mere presence in a pharmacy at Wal-Mart to give an officer an excuse to detain someone."
We need not decide whether Detective Comeaux had reasonable suspicion to conduct an investigatory stop by removing all the occupants from the vehicle, and patting down and handcuffing the defendant. Whatever justification Detective Comeaux may have had up to this point to restrain the defendant's freedom, we find that the search of the vehicle was illegal because Detective Comeaux did not have probable cause to arrest the defendant or probable cause to search the vehicle.
The State bears the burden of proving the admissibility of evidence seized during a search without a warrant. La. Code Crim. P. art. 703(D). A search conducted without a warrant is per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these is the automobile exception which is based upon the existence of probable cause to search the vehicle and exigent circumstances which render it impractical to secure a warrant. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). A second exception to the rule is that a search may be conducted without a warrant when it is an incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). When the occupant of an automobile is arrested, the police, as a contemporaneous incident of that arrest, may search the passenger compartment of the automobile. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Singletary, 442 So.2d 707 (La. App. 1st Cir.1983). See State v. Lumpkin, 2001-1721 (La. App. 1st Cir. 3/28/02), 813 So.2d 640, 643, writ denied. 2002-1124 (La. 9/26/03), 854 So.2d 342.
Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him. La. Code Crim. P. art. 201. An arrest occurs when circumstances indicate an intent to effect an extended restraint on the liberty of an accused, rather than at the precise time an officer tells an accused he is under arrest. State v. Commodore, 418 So.2d 1330, 1333 (La. 1982).
A peace officer may lawfully arrest a person without a warrant when he has reasonable (probable) cause to believe that the person to be arrested has committed an offense. La. Code Crim. P. art. 213. Probable cause to arrest exists when facts and circumstances within the arresting officer's knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Although mere suspicion cannot justify an arrest, the officer does not need sufficient proof to convict. State v. Bell, 395 So.2d 805, 807 (La. 1981). Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. Whether probable cause existed at the time of the arrest must be determined without regard to the result of the subsequent search. State v. Buckley, 426 So.2d 103, 107 (La. 1983). See Lumpkin, 813 So.2d at 643-44.
Probable cause for a warrantless search is determined by the same standards applicable to the probable cause required for a warrantless arrest. State v. Smith, 377 So.2d 1220, 1222 (La. 1979). Probable cause to search exists when the facts and circumstances are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Huffman, 419 So.2d 458, 459-460 (La. 1982); State v. Williams, 432 So.2d 1003, 1008 (La. App. 1st Cir. 1983), writ denied. 435 So.2d 439 (La. 1983). See Lumpkin, 813 So.2d at 644. Imagined facts based upon mere suspicion, like mere suspicion itself, cannot suffice as probable cause. State v. Jones, 358 So.2d 1257, 1259 (La. 1978).
Our review of the facts reveals that Detective Comeaux observed Catchings buy a box of cold and allergy medicine. The detective did not wait around long enough to see what the defendant bought. The detective then went outside, saw the defendant enter the sedan, and moved his vehicle to a spot where he had a better view of the suspect vehicle. Catchings and Wetzler were already inside the sedan when the defendant returned and got in. Wetzler then got out of the vehicle and walked into Wal-Mart. Neither Detective Comeaux nor his partner, Detective Boynton, followed Wetzler into the store. Thereafter, Hatcher walked through the parking lot and got into the vehicle the defendant was in. According to Detective Comeaux, before getting in the vehicle, Hatcher approached in a furtive manner and scanned the parking lot. Detective Comeaux then saw what appeared to him to be the defendant and Hatcher exchange money, which led him to believe they were involved in a drug transaction. The detective pulled his vehicle alongside the other vehicle and had Hatcher exit. While they were speaking to Hatcher, Wetzler was heading toward them carrying a white Wal-Mart bag. Detective Boynton engaged Wetzler, directed her to the vehicle, and, apparently without consent, took the Wal-Mart bag from her. Detective Boynton gave the bag to Detective Comeaux, who looked in the bag and saw that it contained a box of Sudafed. Regarding looking in the bag, the detective stated at trial, "It was at that time we recovered the products that she had purchased from Wal-Mart." At this point, the defendant and Catchings were removed from the vehicle. They were patted down and the defendant was handcuffed. There was no testimony to indicate that either detective found any weapons or contraband on any of the occupants. Detective Comeaux then searched the vehicle.
Without a search warrant or consent, there appears to be nothing in the record to indicate Detective Comeaux had probable cause to search the Wal-Mart bag. We also note that defense counsel refers to the boxes of pseudoephedrine, which were not sent to this Court as exhibits, as "Equate" boxes. Since the boxes of pseudoephedrine are referred to as Sudafed throughout the trial, we also refer to the medicine as Sudafed for the sake of consistency.
It is not clear from the record if all of the occupants were handcuffed.
Based on these facts and circumstances, we find that Detective Comeaux did not have probable cause to arrest the defendant. Because of behavior that looked like "smurfing," Detective Comeaux detained all the occupants of the vehicle, patted them down, and handcuffed, at least, the defendant. With the speculation that Catchings bought pseudoephedrine and not knowing what the defendant bought, and having discovered that Wetzler had bought Sudafed, Detective Comeaux proceeded to search the vehicle. We find that the information available to Detective Comeaux before he searched the vehicle was not sufficient to justify a belief that the defendant had committed or was in the process of committing a crime.
Detective Comeaux emphasized several times throughout his testimony that he conducted a "wing span" search of the vehicle after removing the occupants and patting them down. Such a wing span search, however, is permitted only as a search incident to a valid arrest, which requires probable cause. See Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L,Ed.2d 485 (2009). Detective Comeaux testified that the occupants were only "detained" when taken out of the vehicle and when the vehicle was searched. According to the detective, he did not arrest the defendant and the other occupants until after he searched the vehicle and found the Sudafed and Sudafed boxes. Arguably, the defendant was arrested when he was removed from the vehicle and handcuffed. See State v. Adams, 2001-3231 (La. 1/14/03), 836 So.2d 9, 12; State v. Broussard, 2000-3230 (La. 5/24/02), 816 So.2d 1284, 1287. But even if these actions by Detective Comeaux constituted a de facto arrest, the result would be the same since a de facto arrest, just like a de jure arrest, requires probable cause to render it valid. See State v. Porche, 2006-0312 (La. 11/29/06), 943 So.2d 335, 339-40; Broussard, 816 So.2d at 1286-87. Thus, since Detective Comeaux did not have sufficient knowledge to justify a belief that the defendant committed or was in the act of committing an offense - that is, no probable cause to arrest the defendant - any search of the vehicle as incident to the defendant's arrest (whether the search was before or after the actual arrest) was illegal. See State v. Sherman, 2005-0779 (La. 4/4/06), 931 So.2d 286, 292 (searches incident to arrest conducted immediately before formal arrest are valid if probable cause to arrest existed prior to the search).
Further, there was no probable cause to search the vehicle under the automobile exception to the warrant requirement. Detective Comeaux's knowledge prior to searching the vehicle was that the defendant and Catchings may have been "smurfing." The detective knew only that Catchings had bought cold and allergy medicine, had no idea what the defendant bought, and knew Wetzler had bought Sudafed only after having already detained the occupants of the vehicle and seizing Wetzler's Wal-Mart bag from her. Since Detective Comeaux was unable to observe exactly what Catchings bought, he assumed that, since it was cold and allergy medicine, Catchings was buying pseudoephedrine.
Detective Comeaux testified at the motion-to-suppress hearing about a hand-to-hand transaction involving the exchange of money. When asked on cross-examination what drug he thought was involved in the transaction, Detective Comeaux responded, "Pseudoephedrine, if not methamphetamine." To this, defense counsel replied, "Okay. Wait, wait, wait. You had some information sometime before that there was methamphetamine in this car?" The prosecutor objected and argued that the particular drug being transacted was irrelevant for purposes of the motion to suppress. The trial court agreed and sustained the objection. Thereafter, the following exchange between defense counsel and Detective Comeaux took place:
Q. Were there any facts -- let me ask it a different way. Did you have any facts within your own knowledge, prior to jumping out on these people, that there was methamphetamine in that car?
A. I apologize. I was trying to explain. I thought Mr. Hoffstadt [prosecutor] was going to object. In the past, during methamphetamine --
Q. No, no. I'm not asking about that. I'm sorry.
A. My training and my experience. I'm trying to answer your question. It's merely based on my training and experience and past investigations.
Q. That there was methamphetamine in the car?
A. No, sir. I never testified to that.
The prosecutor then responded, "Your Honor, I apologize. Mr. Knight [defense counsel] has now circled around and asked the same question which is absolutely total [sic] irrelevant to the issue before the Court." Defense counsel felt that the particular drug Detective Comeaux thought was being transacted was highly relevant since it is not against the law to possess or "to transact pseudoephedrine." After further argument, the trial court disagreed with defense counsel and sustained the prosecutor's objection.
At trial, Detective Comeaux testified that it is not against the law to purchase or possess pseudoephedrine (unless an individual possesses twelve grams or more, see La. R.S. 40:962.1.1). According to the detective, the total amount of Sudafed found in the vehicle was 7.2 grams. The detective further testified that it is not illegal to purchase a box of Sudafed for someone else.
At trial, Detective Comeaux testified that after observing Hatcher get in the sedan in the driver's seat, he "believed that they were probably engaged in some kind of hand-to-hand drug activity," referring specifically to Hatcher and the defendant. There is no further discussion as to what drug the detective thought was being transacted. It was never clear from Detective Comeaux's testimony what drug he thought was being exchanged or who was receiving the money. For example, at the motion-to-suppress hearing, the detective stated, "It appeared that they were exchanging currency. Based on that investigation, that led me to believe they were doing a hand-to-hand drug transaction." At trial, Detective Comeaux stated, "It was during that time, I observed that subject complete a hand-to-hand transaction with Mr. Duhe in the rear. From my position, it appeared he was handing him currency to that person." At the motion-to-suppress hearing, the detective said he saw the exchange of currency, but could not see the denomination of the bill. While the detective suggested at the motion-to-suppress hearing it might have been methamphetamine, he later stated that he never testified that there was methamphetamine in the car. It appears, thus, that defense counsel was correct in his line of questioning at the motion to suppress in his attempt to determine precisely what Detective Comeaux meant when he stated he believed they were doing a "hand-to-hand drug transaction." When asked on cross-examination at the motion-to-suppress hearing what drug was being transacted, the detective replied, "Possibly pseudoephedrine." But, as noted, it is not illegal to possess pseudoephedrine or to purchase it for someone else. It is unclear to us, therefore, why the trial court sustained the prosecutor's objections regarding this issue and shut down this entire line of questioning.
In any event, we find nothing in the facts known to Detective Comeaux at the time he searched the vehicle that could have reasonably led him to believe that the defendant and Hatcher were involved in a methamphetamine transaction. At most, and the detective conceded as much in his testimony, he arguably could have had a reasonable belief that Sudafed was being exchanged for money. The facts, known to Detective Comeaux prior to his search of the vehicle were that, of the four vehicle occupants, one (Catchings) had bought cold and allergy medicine that may have contained pseudoephedrine; one (the defendant) had stood in the same pharmacy line as Catchings; one (Wetzler) had purchased Sudafed (a fact known only after Hatcher had been removed from the vehicle and Wetzler's Wal-Mart bag was taken away from her by the detectives); and one (Hatcher) exchanged money with the defendant. We note that Detective Comeaux made no mention during his testimony that the Sudafed tablets or empty boxes of Sudafed were in plain view. See State v. Hernandez, 410 So.2d 1381, 1383-84 (La. 1982).
We do not find that under these facts and circumstances, wherein three of the four passengers of a vehicle each bought a box of Sudafed, that Detective Comeaux could have had a reasonable belief that a crime had been committed and that evidence or contraband would have been found at the place to be searched. Accordingly, we conclude that Detective Comeaux did not have probable cause to search the vehicle. The Sudafed tablets were illegally seized. The trial court erred in denying the defendant's motion to suppress.
Even this information was not known to Detective Comeaux prior to the search of the vehicle. Before he searched the vehicle, the detective knew two people had bought cold and allergy medicine - Catchings and Wetzler.
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TRIAL COURT'S RULING DENYING THE MOTION TO SUPPRESS REVERSED; CONVICTION AND SENTENCE VACATED, AND REMANDED.