97-1182 La.App. 5 Cir. 4/15/98, State v. Richards

• Decision Date: 15 April 1998
• Citation: 97-1182 La.App. 5 Cir. 4/15/98, State v. Richards, 713 So.2d 514 (La. App. 1998)
• Parties: 97-1182 La.App. 5 Cir
• Court: Court of Appeal of Louisiana

Page 514

713 So.2d 514

97-1182 La.App. 5 Cir. 4/15/98

STATE of Louisiana v. Eddie J. RICHARDS.

No. 97-KA-1182.

Court of Appeal of Louisiana Fifth Circuit.

April 15, 1998.

Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, for Defendant/Appellant Eddie J. Richards.

Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, District Attorney's Office, Parish of Jefferson, Gretna, for Plaintiff/Appellee State of Louisiana.

Before BOWES, GOTHARD and DALEY, JJ.

[97-1182 La.App. 5 Cir. 1] BOWES, Judge.

Defendant, Eddie Richards, appeals his conviction and sentence for possession of a firearm. For the following reasons we affirm.

On July 1, 1996, the Jefferson Parish district attorney filed a bill of information charging defendant with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. Defendant pled not guilty and subsequently filed a motion to suppress evidence, which was heard and denied. On March 5, 1997, defendant waived his right to a jury trial; and on the same day, the court found defendant guilty as charged. ¹

[97-1182 La.App. 5 Cir. 2] Richards filed a motion for new trial, which was denied by the trial court. Defendant waived sentencing delays, and the court sentenced him to ten years at hard labor without benefit of parole, probation, or suspension of sentence. The court also imposed a fine of $1,000.00 as required by the statute, but suspended it in consideration of defendant's indigent status. On the same day, defendant filed a motion to reconsider the sentence which the trial court also denied. Richards was subsequently granted this appeal.

FACTS AND TESTIMONY

The following facts were derived from the testimony at the hearing on the motion to suppress and at trial.

On the evening of June 5, 1996, Lieutenant Raymond Gibbs and Sergeant Emile Lawson of the Jefferson Parish Sheriff's Office Narcotics Division were on patrol in the Tallow Tree area of Harvey, Louisiana. As they approached the intersection of Greenleaf Drive and the Westbank Expressway, they saw a car, which they subsequently determined was driven by Troy Carter, fail to make a complete stop at a stop sign and they also observed that the car had a temporary license plate of questionable validity.

Using police lights and siren, the officers stopped this vehicle with the intention of issuing a traffic citation. Carter immediately stepped out of his car and Joseph Thompson, a passenger in the back seat, also got out. According to the testimony of both officers, defendant, Richards, who was a passenger in the front seat in the car, also exited with his hands up. The [97-1182 La.App. 5 Cir. 3] officers testified that defendant then told them "I've got a gun on me." Lt. Gibbs immediately approached defendant and ordered him to place his hands on the car. Defendant complied, and Gibbs did a "pat-down" search of defendant's person during which Gibbs testified that he found and removed a .38 caliber handgun from defendant's waistband. Although Lawson did not see the retrieval, he testified that Gibbs had found the gun in defendant's waistband.

Gibbs placed defendant under arrest, handcuffed him, and advised him of his rights. Upon further searching defendant further, Gibbs found a small plastic bag of marijuana, cigarette rolling papers, and $702.00 in currency in his pants pockets. Gibbs then arrested the defendant for possession of marijuana.

Lawson searched Carter and Thompson, and found no contraband. ² Computer records also showed that defendant had prior felony convictions. The officers obtained defendant's verbal consent to search his motel room, however, Lawson testified that a subsequent search of the room did not reveal any contraband.

Captain Merril Boling, a latent fingerprint expert with the Jefferson Parish Sheriff's Office, testified that the fingerprints which he had taken from Richards earlier that day matched seven of ten fingerprints on [97-1182 La.App. 5 Cir. 4] defendant, Richard's, 1992 conviction for cocaine possession. The remaining three fingerprints were too smeared for a positive match.

Defendant testified that the car driven by Carter had come to a complete stop at the stop sign, and as they went to make a right turn, the police siren went off and the driver pulled over. According to defendant's testimony, he stayed in the car for about ten minutes after he and his companions were stopped by Gibbs and Lawson, until several police units arrived at the scene. When he was ordered out of the car, he was not immediately frisked, but instead was questioned by the officers. Defendant further testified that, upon being searched, Officer Gibbs found a motel key, $702.00 in cash (according to Richards, this was money from a civil settlement) and some concert tickets. Defendant also testified that he saw Gibbs go into the car and emerge with the gun that Lt. Gibbs said he had found on the defendant's person.

The defense also produced documents generated by the sheriff's office in connection with the forfeiture of other items in defendant's case. Through the testimony of Captain Kenneth Gaillot, the defense showed that these documents listed Joseph Thompson, and not the defendant, as the owner of the gun. Gaillot explained, however, that the police report stated the weapon was seized from the defendant, and that he used the police report simply as a source of information in composing these documents. [97-1182 La.App. 5 Cir. 5] Importantly, Gaillot also testified that he had simply transposed Thompson's name with defendant's by mistake.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant asserts that the trial court erred by failing to suppress evidence obtained after an illegal search. In this assignment, he complains that the version of the incident as related by the officers was not credible, and that the evidence seized by Lt. Gibbs and Sgt. Lawson was inadmissible because it was the fruit of an illegal stop.

According to the officers, the driver of the car committed a traffic offense by failing to come to a complete stop at a stop sign. Moreover, the officers suspected that the car's temporary license plate was invalid. In general, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In addition, the courts of this state have found that traffic violations are valid bases for investigatory stops. See State v. Washington, 96-656 (La.App. 3 Cir. 1/15/97), 687 So.2d 575; State v. Colarte, 96-0670 (La.App. 1 Cir. 12/20/96), 688 So.2d 587, writ denied, 97-1015 (La.10/3/97), 701 So.2d 197; State v. Allen, 93-838 (La.App. 5 Cir. 5/31/94), 638 So.2d 394, writ granted, 94-1754 (La.11/29/94), 646 So.2d 390, writ recalled, 94-1754 (La.3/16/95), 651 So.2d 1343.

[97-1182 La.App. 5 Cir. 6] Defendant asserts that the alleged traffic violations were a pretext to allow the officers to achieve their actual objective, which was to search all of the car's occupants for contraband. However, in Whren, supra, the United States Supreme Court held that the determination of reasonable grounds for an investigatory stop or probable cause for an arrest does not rest on the officer's subjective beliefs or attitudes, but turns on a completely objective evaluation of all of the circumstances known to the officer at the time of his challenged action. See also State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879.

Although the defendant testified that the car did stop at the stop sign, the trial court apparently found the testimony of the police officers to be more credible than that of the defendant. Where there is conflicting testimony as to factual matters, the question of the credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness--and--the credibility of witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052; State v. Patterson, 473 So.2d 363 (La.App. 5 Cir.1985).

Moreover, the officers had the authority to remove defendant from the car, even though he was not the driver. In Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the U.S. Supreme Court found that a police officer making a traffic stop has the authority to order all of the [97-1182 La.App. 5 Cir. 7] vehicle's passengers to get out of the car pending the completion of the stop. Also see State v. Parfait, 96-1814 (La.App. 1 Cir. 5/9/97), 693 So.2d 1232, writ denied, 97-K-1347 (La.10/31/97), 703 So.2d 20. Based on the foregoing, we find it clear that the officers' initial stop of the car was valid.

Subsection B of La.C.Cr.P. art. 215.1 provides that when an officer has stopped a person and suspects that the person has a dangerous weapon, he may conduct a search of that person. State v. Belton, 441 So.2d 1195 (La.1984); State v. Stevens, 95-501 (La.App. 5 Cir. 3/26/96), 672 So.2d 986. The officers testified (at trial and at the hearing on the motion to suppress) that after they stopped the car, the defendant told them he had a gun on his person. At trial, the defendant denied having made such an admission, but the trial court apparently found the officers' testimony more credible. Since the trial court has the sound discretion to make such a credibility determination, as pointed out supra, we find that the officers did have a valid basis for searching the defendant for weapons.

Accordingly, we hold that the trial court did not err in failing to suppress the gun seized by the officers. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

The verdict was contrary to the law and evidence presented at trial.

[97-1182 La.App. 5 Cir. 8] By this assignment, defendant complains that the evidence at trial was insufficient to prove the offense of convicted felon in possession of a firearm.

The...