State v. Baker

332 So.3d 692

STATE of Louisiana

v.Jessie James BAKER

2020 KA 1253

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: NOVEMBER 01, 2021

Scott M. Perrilloux, District Attorney, Zachary Daniels, Assistant District Attorney, Amite, Louisiana, Counsel for Appellee, State of Louisiana

Cynthia Meyer, New Orleans, Louisiana, Counsel for Defendant/Appellant, Jessie James Baker

BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.

McCLENDON, J.

The defendant, Jessie James Baker, was charged by bill of information with illegal carrying of weapons, a violation of LSA-R.S. 14:95(E) (count 1, prior to the 2016 amendment); and possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1 (count 2). He pled not guilty. The defendant filed a motion to suppress the evidence and, following a hearing on the matter, the motion was denied. Following a jury trial, the defendant was found guilty as charged on both counts. On count 1, the defendant was sentenced to ten years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On count 2, he was sentenced to twenty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The sentences were ordered to run concurrently. The defendant now appeals, designating two assignments of error. We affirm the convictions and sentences.

FACTS

On January 16, 2015, Officer Henry Dejean, with the Hammond Police Department, was part of a street crimes unit surveilling the Blue Store on Range Road in Hammond. Officer Dejean was in uniform and in a marked police unit. Using binoculars because he was about a block away, Officer Dejean observed a man standing outside of the Blue Store. The defendant pulled into the parking lot in a black Dodge Charger. The man outside handed the defendant money, and the defendant gave the man a cellophane bag.

Having witnessed what he believed to be a hand-to-hand drug transaction, Officer Dejean followed the defendant, who had driven out of the parking lot, and initiated an investigatory stop. With the defendant still in his vehicle, the engine off, and the driver-side window rolled down, Officer Dejean informed the defendant of what he had just witnessed. The officer, who also smelled marijuana emanating from the vehicle, asked the defendant if he had a weapon or narcotics. The defendant replied "no." Officer Dejean told the defendant he was going to have a K-9 unit brought out to sniff his vehicle. When Officer Dejean asked the defendant to step out of the vehicle, the defendant started the engine and attempted to put the vehicle into drive. Officer Dejean reached into the vehicle to stop the defendant, and a struggle ensued. Officer Dejean called for backup. The defendant reached for the center console. Officer Dejean prevented the defendant from opening the console lid completely, but it was opened partially. Officer Dejean saw a handgun in the console. Backup arrived, and the defendant was taken out of his vehicle and handcuffed. The officers found a bag of marijuana on the defendant's person. The handgun, a .9mm Gimenez with a fully loaded magazine and a live round in the chamber, was seized from the vehicle.

The K-9 unit arrived and the K-9 dog alerted on the defendant's vehicle. The vehicle was searched, and suspected marijuana shavings were found on the floorboard.

The defendant testified at trial. He indicated that the man outside of his vehicle was his brother and that he had given his brother some quarters to buy cigarettes. The defendant had convictions for attempted aggravated rape and armed robbery.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues the trial court erred in denying his motion to suppress the evidence. Specifically, the defendant contends there was no exception to the warrant requirement that permitted Officer Dejean to seize the gun and marijuana.

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. Young, 2006-0234 (La.App. 1 Cir. 9/15/06), 943 So.2d 1118, 1122, writ denied, 2006-2488 (La. 5/4/07), 956 So.2d 606. A trial court's legal findings, however, 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 the 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. Bell, 2014-1046 (La.App. 1 Cir. 1/15/15), 169 So.3d 417, 421.

The Fourth Amendment to the United States Constitution and Article I, § 5, of the Louisiana Constitution protect 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) ; Bell, 169 So.3d at 421.

If a vehicle is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits the police to search the vehicle. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) (per curiam). The "automobile" exception has no separate exigency requirement because the exigency is supplied by the inherent mobility of the vehicle and the citizen's lesser expectation of privacy. Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999) (per curiam); State v. Harris, 2011-0779 (La.App. 1 Cir. 11/9/11), 79 So.3d 1037, 1041.

Probable cause means a fair probability that contraband will be found. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). 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. Lumpkin, 2001-1721 (La.App. 1 Cir. 3/28/02), 813 So.2d 640, 644, writ denied, 2002-1124 (La. 9/26/03), 854 So.2d 342.

Police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it, may conduct a warrantless search of the vehicle as thoroughly as a magistrate could authorize. The scope of the warrantless search of an automobile is not defined by the nature of the container in which the contraband is secreted, but rather, is defined by the object of the search and the places in which there is probable cause to believe it may be found. That is, if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. See United States v. Ross, 456 U.S. 798, 824-25, 102 S.Ct. 2157, 2172-73, 72 L.Ed.2d 572 (1982).

While the defendant does not specifically address the stop itself, we address that issue for the sake of completeness. When Officer Dejean, with his binoculars, saw what appeared to be a hand-to-hand drug transaction between the defendant and an unknown man outside of the defendant's vehicle, Officer Dejean clearly had reasonable suspicion, if not probable cause, to conduct an investigatory stop. See LSA-C.Cr.P. art. 215.1 ; State v. Fearheiley, 2008-0307 (La. 4/18/08), 979 So.2d 487, 489.

The defendant argues in brief that the search of his vehicle was illegal because Officer Dejean did not have a warrant and there was no enumerated exception to the warrant requirement to allow him to search the vehicle. The defendant cites to Arizona v. Gant, 556 U.S. 332, 349-51, 129 S.Ct. 1710, 1723, 173 L.Ed.2d 485 (2009), which 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. The defendant notes that after he was arrested, he was placed in the back of a police unit. At this point, according to the defendant, Officer Dejean went back to his vehicle and seized the gun and marijuana in violation of Gant. The defendant's assertions are baseless, and Gant has no applicability to this case.

We address first the seizure of the marijuana. The marijuana at issue in this case was seized from the defendant's person following a valid search incident to arrest. See State v. Surtain, 2009-1835 (La. 3/16/10), 31 So.3d 1037, 1046-47. The search of the defendant's person immediately followed his arrest, regardless of whether at that moment it was a formal arrest or a de facto arrest, and occurred before he was placed in the back of the unit. According to Officer Dejean's testimony at trial and the motion to suppress hearing, after he and Officer Michael Norwood, also with the Hammond Police Department, were able to get the defendant out of his vehicle, the defendant was handcuffed¹ and a search incident to arrest was conducted. The officers found in the defendant's clothing a clear cellophane bag, knotted at the top, containing green vegetable matter. This evidence was sent to the crime lab and was identified at trial as 5.19 grams of marijuana.

While the search of the defendant's vehicle for marijuana was conducted while the defendant was in the back of the police unit, no marijuana was seized from the vehicle. As Officer Dejean explained at trial, he found only trace amounts of marijuana in the vehicle, which were not seized. Moreover, the search...