State v. Alonzo

• Decision Date: 25 September 1991
• Docket Number: No. 22766-KA,22766-KA
• Citation: 587 So.2d 136
• Parties: STATE of Louisiana, Appellee, v. Robert ALONZO, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 136

587 So.2d 136

STATE of Louisiana, Appellee, v. Robert ALONZO, Appellant.

No. 22766-KA.

Court of Appeal of Louisiana, Second Circuit.

Sept. 25, 1991.

On Rehearing Oct. 30, 1991.

Geary S. Aycock, West Monroe, for appellant.

William Guste, Jr., Atty. Gen., Baton Rouge, William R. Coenen, Jr., Dist. Atty., Penny Wise-Douchiere, Asst. Dist. Atty., Rayville, for appellee.

Before SEXTON, BROWN and STEWART, JJ.

SEXTON, Judge.

Defendant entered a Crosby ¹ plea, while represented by appointed counsel, to possession of over 60 pounds but less than 2,000 pounds of marijuana, in violation of LSA-R.S. 40:966E, reserving his right to appeal the district court denial of his motion to suppress. The district court sentenced defendant to ten years at hard labor.

Defendant's retained counsel, who was substituted for his indigent defender, filed five assignments of error, all of which addressed the alleged excessiveness of defendant's sentence. Defendant thereafter retained new counsel, who assigned as additional error the district court's refusal to grant defendant's motion to suppress. Defense counsel next filed a motion with this court seeking to assign, as additional error, ineffective assistance of counsel, which motion was denied as a matter more appropriately addressed by way of an application for post-conviction relief at the district court level. Finally, although not assigned as error in any formal pleading, defendant argues in brief that the district court erred in denying his motion for continuance filed shortly over two weeks prior to his scheduled trial. Finding no merit to any of the arguments set forth by defendant, we affirm his conviction and sentence, but amend his sentence to give credit for time served.

At approximately 11:30 a.m. on December 7, 1988, the defendant, Robert Alonzo, was traveling east on Interstate 20 in Richland Parish on a two-way portion of the interstate which was under construction. Louisiana State Police Trooper Stephens, who was traveling west, passed defendant and observed that his vehicle was approximately half a car length behind the vehicle preceding him. Since the trooper believed that defendant's vehicle was too close to avoid a collision if the preceding driver made an emergency stop or took evasive action, the trooper turned around, overtook and stopped defendant's vehicle.

When asked for his driver's license, defendant briefly searched a suitcase and then stated that he must have left it at home. As the defendant searched for his driver's license, the trooper noticed a very strong odor of air freshener. His experience in narcotics work was that air freshener was often used to mask the odor of contraband.

The trooper described the defendant's behavior as very talkative and very nervous. Defendant stated he was en route to Florida for a funeral. When questioned, there was a long pause after which defendant replied it was his aunt's funeral. Defendant produced an insurance card showing Sylvia Alonzo as the owner of the vehicle. The defendant explained that he was driving too closely because he wasn't paying attention while eating and drinking. A half-eaten sandwich and a fast food drink were observed in the vehicle.

The trooper had the defendant sit in the patrol car while a check through the state police computers was made for defendant's driver's license. The check revealed that defendant had a Texas driver's license which had expired in May of 1986. When asked if he had ever been arrested, defendant responded in the negative. However, a check of prior arrests by Trooper Stephens revealed a cocaine and weapons offense arrest in August of 1988. Defendant also had a prior arrest for DWI and another weapons charge.

The trooper issued traffic tickets for following too closely and for an expired driver's license and asked for permission to search the vehicle. The defendant initially gave consent to search. While Trooper Stephens was filling out the consent form, another trooper arrived on the scene and observed a clear plastic bag containing a white powdery substance in the vehicle. When the second trooper informed Trooper Stephens what he observed, the defendant withdrew his consent to search. At that point, Trooper Stephens immediately called for a narcotics dog. Defendant was advised of his Miranda rights and told that he was not under arrest.

After both officers observed the plastic bag with the white powdery substance, defendant was asked what was in the trunk. In response, he gasped and said he didn't know what was in the trunk because the car belonged to his ex-wife. He had previously told the officers that the car belonged to his wife.

When the narcotics dog arrived, approximately 25 minutes after Trooper Stephens' request, it strongly alerted twice on the rear quarter panel and the trunk section of defendant's vehicle. Defendant retrieved the trunk key which he had earlier thrown underneath the patrol car. The officers opened the trunk and found three large bags containing green vegetable matter which appeared to be marijuana. Defendant was then arrested and transported to state police troop headquarters where he was given another Miranda warning. Later, he was transported back to Richland Parish where he was asked to cooperate in the follow-up investigation by contacting the person to whom he was to deliver the marijuana. The record indicates that defendant's efforts were more of a pretense than a sincere effort.

MOTION TO SUPPRESS

In the first assignment of error, defendant argues that the motion to suppress should have been granted because Trooper Stephens made an illegal pretextual stop. This assignment of error is without merit. In brief, the state cites this court's case, State v. Cohen, 549 So.2d 884 (La.App.2d Cir.1989), writ denied, 559 So.2d 135 (La.1990). There, the court explained that LSA-R.S. 32:81 means a following car should leave enough room in case the car in front stopped suddenly. In the instant case, the officer observed defendant driving half a car length behind the preceding motorist. His testimony was that there was an unsafe distance between the two vehicles.

As in Cohen, there is no evidence in this case that the stop for following too closely was a pretext to search for drugs. When the stop was made, the trooper observed that the defendant was extremely nervous and talkative and could not produce a driver's license which subsequent investigation determined was expired. Further, the car had a very strong aroma of air freshener which the trooper's experience indicated was frequently used to mask the smell of contraband. Defendant stated he had never been previously arrested but a check revealed that defendant had been arrested on narcotics and weapons violations and DWI.

Defendant's argument and the circumstances of this case are strikingly similar to Cohen, supra, where we disposed of the issue as follows:

The defendant's next argument is that the stop for "following too closely" was a pretextual stop made in order to search for drugs. Defendant contends that the officer did not have reasonable suspicion to arrest the defendant and, thus, the search of his car was the fruit of an illegal arrest. In support of this contention, the defendant argues that the officer's actions after stopping the defendant were inconsistent with a concern for safety regulations....

In this case there is no evidence that the stop for following too closely was a pretense to search for drugs. The authority for the stop was La.C.Cr.P. Article 213, under which an officer may make an arrest for a misdemeanor committed in his presence. That occurred here, but a ticket was initially to be given rather than an arrest made.

For these reasons, we find that the stop was lawful.

State v. Cohen, supra at 886-7.

Similarly, in the case before the court, Trooper Stephens was objectively justified in stopping defendant for following the preceding vehicle too closely. He testified unequivocally that defendant was too close to the preceding vehicle to avoid a collision in the event that the lead vehicle stopped suddenly or was forced to take some sort of evasive action.

After the initial stop, the trooper ran a driver's license check on defendant when he was unable to produce a valid driver's license. Further, when the defendant, in response to a direct inquiry by Trooper Stephens, denied having been previously arrested, Trooper Stephens ran a computer check and discovered that defendant had previous arrests for cocaine and weapons offenses, as well as an arrest for driving while intoxicated.

Defendant further argues that his detention was unreasonably long prior to the arrival of the drug dog, especially in light of the fact that he was originally stopped for a traffic offense.

Defendant initially gave permission to search the vehicle but withdrew it when a second trooper observed a clear white plastic bag containing a white powdery substance in the vehicle. The drug dog was immediately requested and arrived within 25 minutes and made, according to Trooper Stephens, the hardest alert he had ever observed.

We again turn to Cohen for guidance:

We understand defendant's argument to be that the delay of approximately one hour and 15 minutes, between defendant's refusal of the consent to search and the actual search of his car, was an unreasonable period of time for the detention of the vehicle.

Although we are dealing here with an investigative detention rather than an investigative stop, some guidance is provided in determining "reasonableness" by the U.S. Supreme Court case of U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), which stated:

"In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was...