State v. Palacio, No. 2009 KA 0003 (La. App. 10/23/2009)

Page 1

STATE OF LOUISIANA v. CESAR ADOLFO PALACIO.

No. 2009 KA 0003.

Court of Appeals of Louisiana, First Circuit.

October 23, 2009.

Not Designated for Publication

ON APPEAL FROM THE 22ND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY DOCKET NO. 423,740, DIVISION "F", HONORABLE MARTIN E. COADY, JUDGE PRESIDING.

WALTER P. REED, District Attorney, Counsel for Appellee State of Louisiana and

KATHRYN LANDRY, Special Appeals Counsel, IVAN A. ORIHUELA, Counsel for Defendant/Appellant Cesar Adolfo Palacio.

Before: WHIPPLE, HUGHES, and WELCH, JJ.

HUGHES, J.

The defendant, Cesar Adolfo Palacio, was charged by bill of information with operating a vehicle without lawful presence in the United States, a violation of LSA-R.S. 14:100.13.¹ The defendant filed a motion to quash the bill of information, arguing LSA-R.S. 14:100.13 is not a valid statute as it is preempted by federal law and that he is a victim of racial profiling. The trial court denied the motion to quash. The defendant withdrew his former plea and entered a plea of guilty as charged, reserving the right to appeal the trial court's ruling on the motion to quash the bill of information pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). The sentence imposed on the defendant by the trial court included time served and the forfeiture of a cash bond previously post by the defendant in the amount of $825.00. The defendant now appeals, presenting five assignments of error as to the trial court's denial of the motion to quash the bill of information:

1. The District Court erred when it denied [the defendant's] Motion to Quash Bill of Information because Louisiana Revised Statute 14:100.13 is preempted by federal immigration law.

2. The District Court erred when it denied [the defendant's] Motion to Quash Bill of Information because Louisiana Revised Statute 14:100.13 is impermissibly vague and therefore invalid.

3. The District Court erred when it denied [the defendant's] Motion to Quash Bill of Information because the Covington Police Department had no probable cause to arrest [the defendant] pursuant to Louisiana Revised Statute 14:100.13.

4. The District Court erred when it denied [the defendant's] Motion to Quash Bill of Information because the penalty set forth by Louisiana Revised Statute 14[:] 100.13 is disproportionately severe.

5. The District Court erred when it denied [the defendant's] Motion to Quash Bill of Information because Louisiana Revised Statute 14:100.13 violates equal protection.

For the reasons that follow, we affirm the conviction and sentence.

FACTS

As the defendant entered a guilty plea to the offense as charged in the instant case, the facts were not developed. In accordance with the bill of information, the instant offense took place on December 17, 2006. The undisputed facts presented in the defendant's briefs are that the defendant was stopped when the Covington Police Department responded to a complaint of an erratic driver.

ASSIGNMENTS OF ERROR

At the outset, we note, as did the State in its appeal brief, that the defendant's motion to quash the bill of information is based on preemption and racial profiling. Articulating a new basis for the motion to quash for the first time on appeal is prohibited since the trial court would not be afforded an opportunity to consider the merits of the particular claim. LSA-C.Cr.P. arts. 841² and 535(D);³ State v. Pelas, 99-0150, p. 3 (La. App. 1 Cir. 11/5/99), 745 So.2d 1215, 1217. Thus, the arguments raised in regard to assignments of error numbers two (statutory vagueness) and four (the legality of the statutory penalty) will not be addressed herein. The other assignments of error will be addressed insofar as the supporting arguments are applicable to the reserved issues of preemption and racial profiling.

In his first assignment of error, the defendant argues that the trial court erred in denying his motion to quash because LSA-R.S. 14:100.13 is preempted by federal immigration law, in that the state statute creates categories of aliens that are wholly divorced from the categories created by the federal government. In assignment of error number three, the defendant argues that the trial court erred in denying the motion to quash the bill of information because the Covington Police Department had no probable cause to arrest the defendant pursuant to LSA-R.S. 14:100.13. In assignment of error number five, the defendant argues that the trial court erred in denying the motion to quash the bill of information because the statute in question violates equal protection.

The defendant specifically argues that LSA-R.S. 14:100.13 does not use federal categories to mirror federal goals and does not rely on federal immigration standards. The defendant argues that LSA-R.S. 14:100.12 provides definitions that are confusing and irreconcilable with federal definitions. The defendant specifically notes that the definitions for alien students and nonresident aliens are new and do not employ or extend federal categories. Further, the defendant argues that the statute requires state agents to make determinations of whether an alien may be admitted or removed from the United States. The defendant also argues that the federal government occupies the field of deciding which aliens are required to carry proof of documentation. The defendant contends that the statute imposes much stiffer penalties for the same violation and that the State's more severe penalties conflict with the federal scheme's penalties. Correspondingly, the defendant argues that the statute is not a valid exercise of state police powers. Moreover, the defendant argues that the requirement that alien students and nonresident aliens carry documentation showing lawful presence in the United States disproportionately affects those aliens covered by the statute and subjects them to severe penalties.

In his motion, the defendant states that the arrest was made without probable cause because it was the result of "selective enforcement police profiling, targeting and arresting Latino drivers." The defendant now argues that the local law enforcement authorities, through the enforcement of LSA-R.S. 14:100.13, are delving into federal immigration matters under the guise of traffic enforcement. The defendant notes that the arresting officer's police report referenced that the defendant is a Hispanic male unable to speak English. The defendant also notes that he was not charged with any traffic offenses or other crimes that would justify the stop, but was instead arrested for a violation of LSA-R.S. 14:100.13 without any further investigation.

In denying the motion to quash the bill of information, the trial court found that the statute challenged herein is not an attempt to regulate immigration, but merely relies on and is compatible with federal immigration standards. Finding no violation of the Equal Protection Clause in this case, the trial court noted that the legislative purposes, as set forth in the statute at issue, clearly show a rational basis under State law for distinguishing between the classes of individuals affected.

Assignment of Error Number One (Federal Preemption):

This court has previously addressed the issue raised in this assignment of error and ruled that LSA-R.S. 14:100.13 is not invalidated on the basis of federal preemption. See State v. Reyes, 2007-1811 (La. App. 1 Cir. 2/27/08), 989 So.2d 770; State v. Gonzalez-Perez, 2007-1813 (La. App. 1 Cir. 2/27/08), 997 So.2d 1; and, State v. Ramos, 2007-1448 (La. App. 1 Cir. 7/28/08), 993 So.2d 281 (en banc). Our decision herein is in accordance with this jurisprudence.

The Supremacy Clause declares that federal law "shall be the supreme Law of the Land[,] ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const, art. VI, cl. 2. The Supremacy Clause requires invalidation of any state legislation that burdens or conflicts in any manner with any federal laws or treaties. Thus, the determination rests on whether a state's law impermissibly interferes with federal law and is therefore preempted. Pursuant to Article I, Section 8 of the U.S. Constitution, federal law has exclusive jurisdiction to regulate matters of naturalization and immigration. Nonetheless, federal law does not automatically preempt every state enactment that in any way deals with aliens. See De Canas v. Bica, 424 U.S. 351, 355-65, 96 S.Ct. 933, 936, 47 L.Ed.2d 43 (1976). In De Canas, the Supreme Court set forth three tests to be used in determining whether a state statute related to immigration is preempted: (1) constitutional preemption, (2) field preemption, and (3) conflict preemption. Pursuant to De Canas, if a statute fails any one of the three tests, it is preempted by federal law. See League of United Latin American Citizens v. Wilson, 908 F.Supp. 755, 768 (CD. Cal. 1995).

The issue raised herein presents a question of law and is, therefore, subject to de novo review. See State v. Smith, 99-0606, p. 3 (La. 7/6/00), 766 So.2d 501, 504. In construing LSA-R.S. 14:100.13, we consider two established rules of statutory construction: (1) all criminal statutes are construed strictly, and (2) the words of a statute must be given their everyday meaning. State v. Kujawa, 2005-0470, p. 7 (La. App. 1 Cir. 2/22/06), 929 So.2d 99, 104, writ denied, 2006-0669 (La. 10/6/06), 938 So.2d65.

On appeal and in his motion to quash, the defendant cites State v. Lopez, 2005-0685 (La. App. 4 Cir. 12/20/06), 948 So.2d 1121, writ denied, 2007-0110 (La. 12/7/07), 969 So.2d 619, in support of his preemption argument. In concluding that LSA-R.S. 14:100.13 is preempted by federal regulations, the Fourth Circuit Court of Appeal found that the ultimate problem presented by LSR.S. 14:100.13 is that paragraph A places a burden on both legal and illegal aliens that exceeds any standard contemplated by federal immigration law. Lopez, 2005-0685 at p. 6, 948 So.2d at 1125....