State v. Acevedo

• Decision Date: 08 May 2019
• Docket Number: NO. 18-KA-683,18-KA-683
• Citation: 273 So.3d 462
• Parties: STATE of Louisiana v. Marvin S. ACEVEDO
• Court: Court of Appeal of Louisiana — District of US

273 So.3d 462

STATE of Louisiana

v.Marvin S. ACEVEDO

NO. 18-KA-683

Court of Appeal of Louisiana, Fifth Circuit.

May 08, 2019

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gretna, Thomas J. Butler, Rachel L. Africk, Jennifer C. Voss

COUNSEL FOR DEFENDANT/APPELLANT, MARVIN S. ACEVEDO, Cynthia K. Meyer

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson

GRAVOIS, J.

Defendant, Marvin S. Acevedo, appeals his conviction of possession of over 400 grams of cocaine in violation of La. R.S. 40:967(F). For the following reasons, we affirm defendant's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

At trial, Detective Allan Doubleday of the Jefferson Parish Sheriff's Office ("JPSO") testified that in June of 2017, he received information from an informant that a suspect driving a Nissan Titan truck was transporting drugs from Texas to Jefferson Parish and that the suspect was storing drugs at a storage unit.¹ Detective Doubleday used the automated license plate reader ("ALPR") system, which takes photographs of license plates as vehicles pass by cameras throughout the state, to track the suspect's vehicle. JPSO Sergeant Joshua Collins monitored the ALPR cameras and advised Detective Doubleday that they had captured the suspect's vehicle traveling to Texas on many occasions. After learning on June 19, 2017 that the suspect's vehicle was traveling towards Texas, Detective Doubleday and other officers went to the Texas/Louisiana border to wait for the suspect's vehicle to return to Louisiana. Detective Doubleday eventually spotted the vehicle and followed it. He and the other officers kept in contact with other detectives who were positioned on I-10 at various locations on the entire route from Texas to Jefferson Parish.

Detective Doubleday testified that Sergeant Collins applied for and obtained a search warrant for the subject vehicle. Detective Doubleday was present for the stop of the vehicle, but Deputy C. Marshall and Detective N. Obiol, who were in a marked unit, stopped the suspect's vehicle in order to execute the search warrant. Detective Doubleday observed two occupants in the vehicle who were later identified as defendant, the passenger, and Mr. Pedro Villareal, the driver. He separated them, advised them of their rights, and spoke to them. Detective Doubleday said that each of them gave a different explanation as to why they had been in Texas and were traveling back to Louisiana the same day. Defendant told him that they had been in Texas for several days attending vehicle auctions. However, Detective Doubleday knew from the surveillance that they had left Louisiana and returned that same day. He spoke to defendant and Mr. Villareal in English and said that defendant fully understood him in English. Detective Doubleday testified that he also speaks Spanish and could have communicated with defendant in Spanish if such had been necessary.

Detective Doubleday testified that they brought the vehicle to Louisiana State Police Troop B at Loyola and Williams Boulevards in Kenner. Prior to the search of the vehicle, a K-9 dog walked around the vehicle. The dog alerted or sensed that there were narcotics throughout the vehicle and specifically underneath it. After searching that area, deputies retrieved a magnetic hideaway key box from underneath the truck. Inside the box they found a plastic bag containing a white powdered substance that tested positive for cocaine. Detective Doubleday advised defendant of his rights a second time. Defendant was later transported to the detective bureau where Detective Doubleday advised defendant of his rights a third time. While questioning defendant, he admitted that the cocaine belonged to him and that Mr. Villareal had no knowledge of it.

Detective Doubleday testified that they searched the interior of the vehicle and found a wallet in the center console. Inside that wallet were a Florida ID with the name of "Marvin Santiago Acevedo" on it, a CubeSmart storage key, a CubeSmart access card with a storage unit number (409) and a PIN on it, and a bag of cocaine. Detective Doubleday stated that he found four cell phones in the vehicle, three of which belonged to defendant and one of which belonged to Mr. Villareal. Detective Doubleday also recovered $ 3,359 in currency from the vehicle. Mr. Villareal was released because the evidence did not link him to the offense.²

Detective Doubleday testified that Sergeant Collins subsequently obtained a second search warrant for the vehicle. During the second search, they found another cell phone. On June 6, 2018, detectives applied for and obtained search warrants for the contents of the four cell phones belonging to defendant.

Detective Doubleday testified that CubeSmart had two locations on Belle Chasse Highway. They went to both locations because they weren't sure which one pertained to defendant. At the first location, they tried to access the site, but because the PIN produced an error message, they went to the other CubeSmart located nearby. When they used the PIN to access the gate at the other CubeSmart location, they received a message to return during certain business hours, which told them that they were in the right location.

Detective Doubleday testified that Sergeant Collins prepared a search warrant for the subject storage unit number 409; however, he mistakenly put the address of the first storage facility they visited (2321 Belle Chasse Highway) and not the correct one that they visited afterwards (2012 Belle Chasse Highway). They ultimately obtained a search warrant, after which they used the key from the wallet and entered storage unit number 409. Detective Doubleday testified that they found a cooler containing four compressed wrapped bricks. The bricks, each weighing one kilo, tested positive for cocaine.³ They also found paperwork in the cooler, including documents from a BP oil spill lawsuit, an Entergy bill with the name "Marvin Santiago" on it, and a pay stub with the name "Marvin Santiago Acevedo" on it. A work shirt with defendant's name and his employer's name on it was also found in the unit. Nothing else in the storage unit, whether paperwork or other items, contained any other name on it.

Detective Doubleday testified that Sergeant Collins obtained a search warrant for leasing and access documents and surveillance video from the storage facility, after which Sergeant Collins met with Christina Collins, the manager of that storage facility, the next day. The leasing documents showed that defendant rented storage unit number 409 from February 27, 2017 until June 19, 2017. The records indicated that the storage unit was accessed sixteen times, but that he only saw defendant two times on the video.⁴ Video surveillance showed defendant arriving in a Nissan Titan, exiting his vehicle, and entering the office of CubeSmart.⁵ Wilmer Cerna was the registered owner of the Nissan Titan. Detective Doubleday testified that defendant and Mr. Cerna were associates, and that no other part of the investigation involved Mr. Cerna. Finally, Detective Doubleday maintained that he did not find a prior conviction for defendant.

Sergeant Collins also testified at trial, his testimony largely corroborating that of Detective Doubleday. Additionally, Sergeant Collins testified that in his experience of working many narcotics investigations, it was a common practice for individuals to store illegal drugs in storage facilities so that they did not have to keep contraband in their vehicles or houses. More likely than not, in his experience, those individuals would store their narcotics in a facility in the vicinity that was being used within their enterprise. Sergeant Collins maintained that they had prior knowledge from the informant that there was a storage facility close to defendant's residence. The residence associated with defendant was somewhere on the Westbank near "Lafayette Boulevard" or Belle Chasse Highway. Sergeant Collins explained that they started from the closest storage facility and worked their way in an outward perimeter until they ultimately found the correct one.

Regarding the four cell phones that were found, Sergeant Collins stated that it was common among drug dealers to obtain and change cell phones and numbers so that they cannot be tracked.

The trial court accepted Sandy Lee, forensic drug chemist at the JPSO Crime Lab, as an expert in the field of the analysis of controlled dangerous substances, who examined evidence in the instant case. Ms. Lee testified that her specimen 001 (State's Exhibit 2) was a sealed plastic bag containing a magnetic key box containing one clear plastic bag with a white powdered substance inside. Specimen 003 (State's Exhibit 6) was a sealed plastic bag containing one clear plastic bag with a white powdered substance inside. Specimen 013 was a sealed paper bag containing four individually wrapped packages each containing a compressed, white powdered substance. Ms. Lee testified that the material in all three specimens was found to contain cocaine. The gross weight of specimen 001 was twelve grams, the gross weight of specimen three was under one gram, and the net weight of specimen 013 was 3,962 grams.

Kortnie Sinon, a latent print examiner at the JPSO Crime Lab, was accepted as an expert in the field of latent print processing and comparison. Ms. Sinon testified that she processed four individual blocks of compressed, white powder wrapped in tape and that she found three fingerprints. She was able to enter two of those fingerprints into her database, but she was not able to make any identification on either print. She compared the three fingerprints to defendant, but the results were inconclusive.

Dr. Marcela Zozaya, a forensic DNA analyst for the JPSO, was accepted as an expert in the field of forensic DNA analysis. Dr. Zozaya testified that she analyzed swabs taken from the kilos of cocaine in the instant case and...