93-1520 La.App. 3 Cir. 10/5/94, State v. Reynaga

• Decision Date: 05 October 1994
• Citation: 643 So.2d 431
• Parties: 93-1520 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 431

643 So.2d 431

93-1520 La.App. 3 Cir. 10/5/94

STATE of Louisiana, Plaintiff-Appellee, v. Edilberto REYNAGA, aka Joe Hernandez and Petra Rodriguez

Salinas, Defendants-Appellants.

No. 93-1520.

Court of Appeal of Louisiana, Third Circuit.

Oct. 5, 1994.

Keith A. Stutes, Asst. Dist. Atty., for State of Louisiana.

G. Paul Marx, Lafayette, for Edilberto Reynaga, aka Joe Hernandez.

Alfred Frem Boustany, II, Lafayette, for Petra Rodriguez Salinas.

Before DOUCET, SAUNDERS and WOODARD, JJ.

[93-1520 La.App. 3 Cir. 1] DOUCET, Judge.

Defendants, Edilberto Reynaga and Petra Salinas, were charged by amended bill of information with possession of marijuana with intent to distribute, a violation of La.R.S. 40:966. Both defendants appeared in court with counsel on April 30, 1992, waived formal arraignments, and entered pleas of not guilty to the charges. Trial in this matter began May 3, 1993, and on May 4, 1993, a Motion to Suppress was filed, heard, and denied by the trial court. Thereafter, on May 6, 1993, the jury returned a unanimous verdict of guilty for each defendant. Sentencing was carried out July 19, 1993, with defendant Reynaga being sentenced to twenty-one years at hard labor, defendant Salinas to five years at hard labor, four of which were suspended with Salinas being placed on four years supervised probation.

[93-1520 La.App. 3 Cir. 2] Both defendants now appeal their convictions and sentences, alleging two assignments of error.

FACTS:

On February 22, 1992, Trooper Beckett Breaux of the Louisiana State Police, stopped a Dodge Ram Charger for exceeding the speed limit. The vehicle was owned by defendant Salinas and was being driven by defendant Reynaga, who did not have a driver's license. Based upon inconsistent stories relayed to him by the passengers, the faint odor of marijuana emanating from inside the vehicle, and the fact that the driver was a Latin male with no driver's license or other identification, Trooper Breaux called the Border Patrol for assistance. Trooper Breaux was given consent to search the vehicle by its owner and thereafter escorted the vehicle to Troop Headquarters to conduct the search. Once at Troop Headquarters, a drug detection dog assisted in the search of the vehicle, which yielded 57 pounds of marijuana.

ASSIGNMENT OF ERROR NO. 1:

By this assignment of error, defendants contend the trial court erred in denying their Motion to Suppress Evidence.

Finding no Motion to Suppress filed by defendant Reynaga in the record, this Court requested a copy of said motion from the trial court. The reply from the Fifteenth Judicial District Clerk's Office assured this court that no Motion to Suppress was filed by Reynaga. A simple objection at trial to the admissibility of evidence (which is in the record) may not serve as a basis upon which to attack a search and seizure as unconstitutional. State v. Brogdon, 426 So.2d 158 (La.1983), appeal after remand, 457 So.2d 616 (La.1984), certiorari denied, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862, rehearing denied, 473 U.S. 921, 105 S.Ct. 3547, 87 L.Ed.2d 670. A defendant's failure to file a Motion to Suppress unconstitutionally obtained evidence, absent a showing of surprise or lack of opportunity, operates as a waiver of any claimed violation of constitutional rights against searches and seizures. State v. Hall, 543 So.2d 120 (La.App. 3d Cir.1989).

[93-1520 La.App. 3 Cir. 3] Reynaga has not filed a Motion to Suppress in accordance with La.C.Cr.P. art. 703. Even if this court were to find that the defendant made an oral Motion to Suppress, Reynaga did not object to the trial court's ruling on his Motion to Suppress, therefore any error cannot be complained of on appeal. La.C.Cr.P. art. 841. Accordingly, the court will address this assignment of error in regard to defendant Salinas only.

Ms. Salinas contends the trial court erred in denying her Motion to Suppress Evidence as there was no probable cause justifying a search of the vehicle. Salinas also contends that it was not until the Border Patrol arrived that she consented to a search of her vehicle, therefore her consent, the product of an unreasonably long detention, was invalid. Ms. Salinas also contends that she has "almost total inability to speak English, casting considerable doubt on whether she said that [she consented to the search] or understood what she was saying."

Trooper Beckett Breaux of the Louisiana State Police was patrolling Interstate 10 in Lafayette Parish when he noticed a Dodge Ram Charger exceeding the speed limit. Trooper Breaux stopped the vehicle and asked the driver to step out of the vehicle. Defendant Reynaga, the driver of the vehicle, identified himself as Joe Hernandez. Trooper Grady Thibodeaux testified in court that Joe Hernandez was one of defendant Reynaga's sixteen aliases. Trooper Breaux identified the driver of the vehicle in court as Edilberto Reynaga. Trooper Breaux also testified that Reynaga told him that he was not in possession of a driver's license, and that he was going from Houston to Florida to pick up a vehicle for his wife who was the owner of the truck and a passenger therein. Trooper Breaux approached the driver's side window to talk to the other two passengers, Petra Salinas and Emma Esparaza. Defendant Salinas said that she owned the truck and only knew defendant Reynaga by his first name, Juan. The truck's registration papers confirmed that Salinas was the owner of the vehicle. Salinas also told Trooper Breaux that Reynaga [93-1520 La.App. 3 Cir. 4] was not her husband, and that she was driving to Florida from Harlingen, Texas to pick up a vehicle which she owned. While standing at the driver's side window, Trooper Breaux noticed a strong smell of air freshener as well as a faint odor of marijuana. As Trooper Breaux asked the two defendants and Emma Esparaza a few questions, he noticed that all three became nervous and avoided eye contact, and were hesitant in answering his questions.

Trooper Breaux radioed the Border Patrol for assistance as he was alone with three Latin suspects, one being male with no identification. Trooper Breaux testified that this was standard procedure. When the Border Patrol arrived, defendant Salinas told Breaux that she had nothing to hide and that he could search her vehicle. Trooper Breaux stated that while defendant Salinas spoke broken English, she was able to respond to his questions. Breaux then asked the defendants and the Border Patrol to follow him back to Troop Headquarters. Once they arrived at Troop Headquarters, Trooper Jack Uhle and a drug detection dog searched the vehicle. The dog alerted to the presence of narcotics and a subsequent search revealed over fifty pounds of marijuana in the body of the vehicle.

Border Patrol Agents Francisco Lomas and Herna Chorinos confirmed the verbal consent to search was volunteered by defendant Salinas. Agent Lomas testified that he spoke with defendant Salinas in Spanish and explained to her the reason for Trooper Breaux's request to search, and she appeared cooperative, understanding, and ultimately consented to the search. Agent Lomas stated that both defendants understood English. Emma Esparaza, the third passenger in the vehicle, also testified that both Salinas and Reynaga offered to let the officers search the vehicle.

When a search is made with consent, the State must prove the consent was freely and voluntarily given, as shown by the facts and circumstances of the individual case. State v. Valrie, 597 So.2d 1218 (La.App. 3 Cir.1992), writ denied, 605 So.2d 1113 (La.1992). Consent is a recognized exception to the warrant [93-1520 La.App. 3 Cir. 5] requirement. State v. Bodley, 394 So.2d 584 (La.1981). Under the United States Constitution, the test for the voluntariness to search is the "totality of the circumstances" and courts must examine all the surrounding circumstances to determine whether the consent was indeed voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Because consent is a question of fact involving the credibility of witnesses, the determination of the trial judge, who had an opportunity to observe and hear the witnesses, is given great weight on review. State v. Yarbrough, 418 So.2d 503 (La.1982). Consent to search given after an illegal arrest or detainment, even where voluntary, "is valid ... only when made under circumstances which show no exploitation of illegality." State v. Zielman, 384 So.2d 359 (La.1980); State v. Dennis, 540 So.2d 550 (La.App. 3 Cir.1989), writ denied, 546 So.2d 171 (La.1989).

In the present case, Trooper Beckett Breaux testified that he did not ask defendant Salinas to search her vehicle, but rather, defendant Salinas voluntarily consented by telling him that "they had nothing to hide and that if I wanted, I could search the vehicle." This consent was given twenty to thirty minutes after the initial stop according to Trooper Breaux. Border Patrol Agent Francisco Lomas stated that he heard Trooper Breaux ask defendant Salinas if she would mind if he searched the vehicle. Agent Lomas then heard defendant Salinas consent to a search. Apparently Trooper Breaux wanted defendant Salinas to verify, in the presence of Agent Lomas, the consent to search that she had given earlier. Emma Esparaza, the third passenger in the vehicle, also testified that defendant Salinas offered to let Trooper Breaux search the vehicle.

Salinas claims that she did not answer Trooper Breaux in English. She further argues, in brief, that because she speaks very little English, there remains a question as to whether she actually consented to the search. Trooper Breaux testified that Salinas spoke broken English but did understand and respond to [93-1520 La.App. 3 Cir. 6] his questions. Agent Lomas testified that after speaking to Salinas in Spanish and English, he felt she understood English. Further, the record reveals that the thirty-nine year old Salinas has been in the...