96 0670 La.App. 1 Cir. 12/20/96, State v. Colarte

• Decision Date: 20 December 1996
• Citation: 688 So.2d 587
• Parties: 96 0670 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 587

688 So.2d 587

96 0670 La.App. 1 Cir. 12/20/96

STATE of Louisiana v. Walfrido S. COLARTE.

No. 96 KA 0670.

Court of Appeal of Louisiana First Circuit.

Dec. 20, 1996.

Rehearing Denied March 19, 1997.

Walter Reed, District Attorney, William R. Campbell, Jr., New Orleans, for Plaintiff-Appellee State of La.

John H. Musser, IV, New Orleans, for Defendant-Appellant Walfrido S. Colarte.

Before WATKINS and KUHN, JJ., and GUIDRY, ¹ J. Pro Tem. [96 0670 La.App. 1 Cir. 2] WATKINS, Judge.

Walfrido S. Colarte was charged by bill of information ² with one count of possession of four hundred grams or more of cocaine, a violation of LSA-R.S. 40:967(F)(1)(c). ³ Defendant pled not guilty and, after trial by jury, was convicted as charged. The trial court sentenced defendant to serve 40 years at hard labor with the Department of Corrections, 30 years of which are without benefit of parole, probation or suspension of sentence, with credit for time served; and to pay a fine of $400,000.

Thereafter, a motion to arrest judgment was filed, alleging a double jeopardy violation. Following remand for a hearing on the matter, the trial court denied the motion. Defendant has appealed, urging eleven assignments of error, which were combined into six arguments for this appeal.

FACTS

The record reveals that on September 13, 1994, Corporal Donald Palliser with the St. Tammany Parish Sheriff's Department, while on routine patrol along I-12, observed an eastbound gray van switch from the left lane to the right lane without signaling. Thereafter, the van veered back into the left lane before crossing over the right lane and the fog line. Fearing that the driver was impaired, Corporal Palliser stopped the vehicle.

Corporal Palliser discovered that the vehicle was owned by Mr. Perez and was being driven by Mr. Colarte. Mr. Colarte told the officer that he had been in Houston for two days and was driving back to New Jersey. When the officer asked Ms. [96 0670 La.App. 1 Cir. 3] Munoz, the passenger in the front seat, where they had been, she stated "somewhere over there." She went on to state that they had visited a cousin of hers in Louisiana. Corporal Palliser obtained the vehicle registration and insurance papers from Mr. Perez, who was seated in the rear of the vehicle. Mr. Perez told Corporal Palliser that he did not remember where they had been. Corporal Palliser stated that all three occupants of the vehicle appeared unusually nervous and kept looking at the ground; thus, he became suspicious and called for a narcotics canine which arrived in five to seven minutes. The canine alerted to the presence of narcotics in the vehicle.

Thereafter, Corporal Palliser asked Mr. Perez for his consent to search the vehicle. A consent to search form was provided in both English and Spanish for Mr. Perez to sign. Mr. Perez signed the consent to search form. Thereafter, the canine was taken inside the van where he led the officers to a stash of cocaine concealed in the overhead television/vcr console. Thirteen kilograms of cocaine was discovered in the television/vcr console. After all three occupants were placed under arrest and the vehicle was impounded, another 37 kilograms of cocaine was discovered in the rear portion of the van. A total amount of 50 kilograms (about 110 pounds) of cocaine was found inside the vehicle with an approximate street value in excess of $1.25 million.

Mr. Colarte argues in his six assignments of error that: 1) the trial court erred when it denied his motion to suppress as a result of an allegedly illegal stop and illegal search; 2) the trial court erred when it denied his motion for mistrial relating to comments made by the prosecutor in his closing argument; 3) there was insufficient evidence to convict; 4) the trial court erred when it failed to grant a mistrial or hold a hearing to determine whether or not Mr. [96 0670 La.App. 1 Cir. 4] Colarte's attorney had a conflict of interest; 5) the sentence imposed was excessive; and, 6) the instant conviction violated the prohibition against double jeopardy.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues in his first assignment of error that the trial court erred when it denied his motion to suppress, because Corporal Palliser was not justified in stopping the vehicle being driven by defendant. He maintains that there was no violation per se of LSA-R.S. 32:79, ⁴ dealing with improper lane usage.

The record reveals that Corporal Palliser stopped the instant vehicle after it switched from the left lane to the right lane without signaling, veered back into the left lane, and crossed over the right lane and the fog line. Corporal Palliser stated that it was his belief that the driver was impaired. Further, he issued a warning citation to defendant for no lane change signal and improper lane usage.

The Fourth Amendment to the United States Constitution and Article I, § 5, of the Louisiana Constitution protect people against unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1, as well as both federal and state jurisprudence. State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Reasonable suspicion for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether or not the [96 0670 La.App. 1 Cir. 5] officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. State v. Pautard, 485 So.2d 909, 911 (La.1986). The right to make an investigatory stop and question the particular individual detained must be based upon reasonable suspicion to believe that he has been, is, or is about to be engaged in criminal conduct. Pautard, 485 So.2d at 911. A law enforcement officer may stop a person in a public place when he reasonably suspects he 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. State v. McHugh, 92-1852 (La.1/6/94); 630 So.2d 1259, 1263. Thus, an investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity, or there must be reasonable grounds to believe that the person has committed or is wanted for past criminal conduct. McHugh, 92-1852; 630 So.2d at 1263.

In State v. Williams, 560 So.2d 899 (La.App. 1st Cir.), writ denied, 565 So.2d 948 (La.1990), this court held that an investigatory stop was permissible where defendant crossed a double yellow centerline, forcing a state trooper off the road. In State v. Vincelli, 555 So.2d 21 (La.App. 1st Cir.1989), this court held that an investigatory stop was permissible where defendant's right tires crossed onto the shoulder three times within a quarter of a mile.

In State v. Shoemaker, 569 So.2d 169, 172 (La.App. 1st Cir.1990), writ denied, 572 So.2d 73 (La.1991), this court noted that a trial court's determination on a motion to suppress that a state trooper did not intentionally [96 0670 La.App. 1 Cir. 6] precipitate an encounter was a credibility determination that should not be disturbed unless manifestly erroneous.

In the instant case, the record reflects that defendant's driving was highly unusual and a deviation from the norm. Thus, it was not unreasonable for Corporal Palliser to initiate an investigatory stop for the purpose of ascertaining the condition of the driver and to insure the safety of other drivers as well as passengers in defendant's vehicle. The circumstances of this case, including the issuance of the warning citation, reveal that defendant was not stopped on any pretextual basis. Since there was a reasonable basis for Corporal Palliser to stop defendant and the trial court found Corporal Palliser's version of the facts to be credible, we find that the trial court did not commit error when it denied defendant's motion to suppress for this reason.

Defendant also maintains that it was improper for Corporal Palliser to continue to question the occupants of the vehicle after he ascertained that the driver was not impaired and issued the warning citation. However, the record reveals that Corporal Palliser stated that, while he checked the NCIC computer system to see if the van was stolen or if the occupants had outstanding warrants, he questioned the occupants. They gave conflicting stories and acted unusually nervous throughout the encounter. Further, it was determined that Mr. Perez had been arrested in New Jersey for cocaine distribution, and Mr. Colarte had been arrested on weapons charges. During this period of time, an officer with a canine arrived and alerted to the door of the vehicle. The owner of the vehicle also signed a consent to search form. The entire encounter from the original stop until the consent to search form was signed lasted approximately seventeen minutes.

In the instant case, the continued questioning of the occupants of the vehicle following the investigatory stop was [96 0670 La.App. 1 Cir. 7] not unreasonable under the circumstances. Based on the actions of the occupants, Corporal Palliser had sufficient knowledge to justify a reasonable suspicion that a crime may have occurred. Thus, the trial court did not err when it denied defendant's motion to suppress. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, defendant maintains that the trial court erred in failing to grant a mistrial when the prosecutor made a reference to defendant's post-arrest silence in his closing argument.

This assignment of error is based on the following colloquy during the prosecutor's closing argument:

BY MR. GARDNER: [THE PROSECUTOR]

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As soon as the dog got in the van, the dog hit on the front...