26,000 La.App. 2 Cir. 5/4/94, State v. Bostic

• Decision Date: 04 May 1994
• Parties: 26,000 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 591

637 So.2d 591

26,000 La.App. 2 Cir. 5/4/94

STATE of Louisiana, Plaintiff-Appellee, v. William BOSTIC, Defendant-Appellant.

No. 26,000-KA.

Court of Appeal of Louisiana,

Second Circuit.

May 4, 1994.

Geary S. Aycock, West Monroe, Joseph (Sib) Abraham, Jr., El Paso, TX, for defendant-appellant.

Jerry L. Jones, Dist. Atty. by J. Michael Ruddick, Monroe, for plaintiff-appellee.

Before NORRIS, J., and LOWE and PRICE, JJ. Pro Tem.

LOWE, Judge Pro Tem.

The Ouachita Parish district attorney charged appellant William E. Bostic with conspiracy to distribute marijuana, a Schedule I substance, and possession of a Schedule I substance with intent to distribute in violation of LSA-R.S. 40:966(A)(1). The conspiracy charge was dropped, and Bostic entered a plea of not guilty to the charge of possession with intent to distribute. At a trial on the merits, the jury found Bostic guilty as charged. Bostic was sentenced to eleven years at hard labor and was fined $5,000 with one year default time should he fail to pay. Bostic appeals his conviction and sentence, assigning six errors:

(1) The trial court erred in denying Bostic's motion to suppress.

(2) The trial court erred in granting the Motion to Quash the subpoenas issued to the Louisiana State Police for production of arrest reports and documents of 54 other similarly situated out-of-state defendants and denying the Public Records Request for said documents.

(3) The trial court erred in deviating from the felony sentencing guideline recommendations of 24 to 36 months discretionary jail sentence.

(4) The trial court erred in finding aggravating circumstances sufficient to deviate from the sentencing guidelines under Sections 209(A) and (B).

(5) The trial court erred in finding that the 750 pounds of marijuana in this case created an aggravating circumstance under the Felony Sentencing Guidelines, Section 209(B), thereby justifying deviation from said felony guideline recommendations.

(6) The trial court erred in imposing an excessive sentence in violation of the U.S. Constitution, and Article 1, Section 20 of the Louisiana Constitution.

We affirm.

FACTS

Bostic was traveling east on Interstate 20 through Ouachita Parish December 19, 1992. The road was wet from rain earlier in the day. Bostic approached a construction zone in a large white Mallard motor home with North Carolina plates. The speed limit changed from 65 miles per hour to 45 miles per hour. Thinking the road was about to narrow to one lane, Bostic sped up to pass other vehicles.

Trooper Neal noticed Bostic as he entered the construction zone. His mental impression that Bostic was exceeding the speed limit was confirmed when the motor home entered his radar range going 70 miles per hour. Trooper Neal stopped Bostic to issue a traffic citation for speeding.

When Bostic produced a driver's license from Tennessee, Trooper Neal asked him about the two differing states on the driver's license and the plates. Bostic became nervous, broke eye contact, made outward hand movements, and rubbed his head back and forth. Trooper Neal thought it odd Bostic would be traveling alone in such a large vehicle. Bostic's presence on I-20 in Ouachita Parish when he claimed to be coming from Slidell, Louisiana, made Trooper Neal suspicious.

When asked for the motor home's registration, Bostic invited Trooper Neal inside while he looked for the papers. Bostic became more nervous. He moved his hands back and forth, he licked his lips as if his mouth were dry, and he appeared to be getting ill. By the time Bostic retrieved the vehicle registration, Trooper Anderson had arrived. When Trooper Neal went to his unit to run a license and registration check, Trooper Anderson walked over and advised Trooper Neal that Bostic was nervous and should be watched.

After the license and registration proved to be in proper order, Trooper Neal returned to where Bostic stood and asked his permission to search the vehicle. Bostic consented, signing the consent to search form Trooper Neal gave him. Trooper Neal searched the motor home and found about 750 pounds of marijuana. Bostic was arrested and charged with possession of marijuana with intent to distribute.

DISCUSSION

Assignment of error number 1. The trial court erred in denying Bostic's motion to suppress.

Bostic argues the initial traffic stop was pretextual, his continued detention was illegal, and his consent to search was invalid. Under such circumstances, he reasons, the search was illegal, so the marijuana should have been suppressed.

A. THE INITIAL TRAFFIC STOP AS PRETEXT. In his first argument in this assignment of error, Bostic asserts Trooper Neal's subjective intention when he stopped the vehicle was to search it. This intent was motivated only by Bostic's out-of-state license plate. This subjective intention on the part of Trooper Neal, Bostic says, makes the stop a violation of his constitutional rights. Thus the evidence seized is the product of an illegal search, and should have been suppressed.

Trooper Neal testified he first saw Bostic speeding through a construction zone, on a wet road, in a large motor home, passing other vehicles. Bostic admitted he sped up to pass others, thinking the road would change to one lane.

There is a split of authority concerning how to assess the constitutionality of allegedly pretextual searches. The United States Court of Appeals for the Fifth Circuit adopted an objective test in U.S. v. Causey, 834 F.2d 1179 (5th Cir.1987), saying: "So long as the police do no more than they are objectively permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry." Causey, supra at 1184.

Here Trooper Neal was authorized to stop Bostic and to issue him a citation for speeding. The fact he may have hoped to gain an opportunity to search the motor home for drugs is of no moment. Trooper Neal's stop of Bostic is not invalid under Causey.

A more subjective standard for evaluating allegedly pretextual searches was stated by the United States Court of Appeals for the Eleventh Circuit in United States v. Smith, 799 F.2d 704 (11th Cir.1986) and adopted by the Tenth Circuit in U.S. v. Guzman, 864 F.2d 1512 (10th Cir.1988). Under this test, an objectively reasonable search is not invalid solely because the officer acted out of improper motivation. Instead, the court should inquire whether a reasonable officer would have made the stop in the absence of the invalid purpose. Smith, supra at 709-710; Guzman, supra at 1517.

The record here is devoid of evidence concerning general practice among troopers, or what a reasonable trooper would have done, when confronted by such a flagrant speeding violation. However, common knowledge dictates that a reasonable trooper would have stopped a motor home driving 25 miles per hour in excess of the speed limit given the road conditions at the time. Trooper Neal's stop of Bostic is not invalid under Smith and Guzman. Thus the initial traffic stop was valid and not pretextual, so Bostic's first argument with regard to this assignment of error is without merit.

B. LEGALITY OF BOSTIC'S CONTINUED DETENTION. In his second argument for suppression of the marijuana, Bostic contends his continued detention was illegal. He claims that after Trooper Neal determined his drivers license and registration were in order, he should have been allowed to leave without further delay for additional questioning. Bostic argues Trooper Neal's retention of his license and registration kept him from being free to go, amounting to an illegal detention and a violation of Bostic's constitutional right to be free from unreasonable searches and seizures. It appears Bostic argues this illegal detention vitiates his later consent to the search of the motor home, making the marijuana a fruit of the illegal detention which should have been suppressed at trial.

Since the initial stop of Bostic was legal, the question presented is whether at any time before he consented to the search of his vehicle, the detention became illegal. To determine whether Bostic was detained too long, the court must look to the diligence of the police in pursuing a means of investigation likely to confirm or to dispel their suspicions quickly. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); State v. Walker, 530 So.2d 1200 (La.App. 2d Cir.1988), writ denied, 532 So.2d 763 (1988); State v. Arrington, 556 So.2d 263 (La.App. 2d Cir.1990). There is no bright-line rule for when a detention lasts too long. Each instance must be assessed in view of the surrounding circumstances. Arrington, supra at 266.

In State v. Bunnell, 517 So.2d 439 (La.App. 1st Cir.1987), the court found an otherwise lawful traffic detention became illegal once a state trooper exceeded the limits of the permissible detention for the express and sole purpose of obtaining defendant's consent to search. There, the trooper purposefully withheld issuing a traffic citation because he was suspicious and wanted to determine if the defendant was involved in some criminal activity. Rather than issuing the citation and allowing defendant to proceed on his way, the trooper detained the defendant for half an hour, far beyond the time deemed reasonable to investigate a minor traffic violation. He did so solely for the purpose of obtaining consent to search the car, having only a generalized suspicion about the occupants based on their nervousness and out-of-state driver's license and registration. The court held the marijuana seized during that consent search had to be suppressed because the defendant, who initially refused permission to search the vehicle, gave his consent only after being illegally detained.

Unlike the Bunnell case, Bostic never refused to give his consent for Trooper Neal to search the motor home. He freely gave his consent after being detained no longer than ten minutes. Roughly five minutes passed while Bostic located his...