State v. Bunnell

• Decision Date: 22 December 1987
• Docket Number: No. KA,KA
• Citation: 517 So.2d 439
• Parties: STATE of Louisiana v. Dale BUNNELL. 87 0073. 517 So.2d 439
• Court: Court of Appeal of Louisiana — District of US

Page 439

517 So.2d 439

STATE of Louisiana v. Dale BUNNELL.

No. KA 87 0073.

517 So.2d 439

Court of Appeal of Louisiana First Circuit.

Dec. 22, 1987.

Louis Sherman, Jr., Asst. Dist. Atty., Amite, for plaintiff-appellee.

Ron S. Macaluso, Hammond, for defendant-appellant.

Before LOTTINGER, EDWARDS and ALFORD, JJ.

LOTTINGER, Judge.

Dale Bunnell was charged with possession of marijuana with intent to distribute. La.R.S. 40:966 A. Defendant pled not guilty and filed a motion to suppress the seized contraband. Following a hearing, the motion to suppress was denied. Thereafter, defendant withdrew his plea of not guilty and pled guilty as charged. Bunnell expressly reserved the right to appeal the adverse ruling on the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced defendant to a three year term of imprisonment at hard labor. Execution of the sentence was suspended, and defendant was placed on supervised probation for five years. In addition, defendant was ordered to pay a five thousand dollar fine. In default of payment of the fine, defendant must serve an additional three year prison term. ¹

Defendant brings this appeal urging as his sole assignment of error that the trial court erred by denying his motion to suppress. ²

The hearing on the motion to suppress reveals that on January 21, 1986, defendant and a companion, Katherine Dahill, were traveling by automobile on Interstate 12 in Livingston Parish, when their vehicle was stopped by Louisiana State Trooper Douglas Robertson. Trooper Robertson testified that he pursued defendant's vehicle after determining that it was traveling at a rate of sixty-six miles per hour, eleven miles per hour in excess of the posted speed limit.

Katherine Dahill, the operator of the automobile, initially conversed with Trooper Robertson about the speeding violation. Robertson testified that Dahill was visibly nervous and, when questioned, Dahill indicated she had visited friends in Houston and was en route to Florida. The vehicle was registered to Bunnell in New York but both Dahill and defendant had Florida driving licenses. When questioned separately, both Dahill and defendant indicated that they now resided in New York State. In addition, defendant stated that he had visited Dallas, although he was not asked if he had also visited Houston.

Robertson testified that, after his conversations with Dahill and defendant, he withheld issuing the traffic citation because he was suspicious. He testified that he was not suspicious of their involvement in a particular crime, but, rather, just suspicious. His articulated bases for the suspicion were:

(1) Dahill and defendant appeared nervous;

(2) Defendant turned around in his seat while the trooper talked with Dahill (3) Dahill and defendant had Florida driver's licenses, but drove an automobile registered to defendant in New York;

(4) Dahill said she had been to Houston; defendant said he had been to Dallas.

Robertson testified that he took the keys from the car's ignition and asked defendant if he might search the car. When Bunnell did not respond, Robertson prepared a written consent to search form. After Robertson read from the consent form, defendant refused to sign or otherwise give his permission. Robertson testified that he told defendant that the search was within the scope of his job and if there were no contraband or anything in the car he would briefly look and then let defendant leave.

Several times during his testimony, Robertson acknowledged that he would not have allowed defendant and Dahill to leave prior to the search. The trooper wanted to search the automobile because that was the only means available to determine if defendant and Dahill were involved in some criminal activity. In support of that desire, Robertson noted that he "[knew] of a lot of crimes that go on on the interstate."

Unsure of how to proceed, Robertson called for assistance. About fifteen minutes after another trooper arrived at the scene, defendant agreed to sign the form. Robertson testified that approximately thirty minutes had passed from the initial stop until the consent to search form was executed by defendant.

A search of defendant's automobile was undertaken by both troopers. The interior of the vehicle was searched first including Dahill's purse, where the troopers found a small quantity of suspected marijuana. In a briefcase located in the trunk of the automobile, the troopers found approximately thirteen thousand dollars in cash. In a suitcase, the troopers located fourteen pounds of marijuana packaged in one pound bags. After the search, Bunnell and Dahill were formally arrested. ³

In brief, defendant contends that he was being illegally detained when he consented to the instant search. Accordingly, Bunnell reasons that his consent was tainted by that illegality. We agree.

Bunnell admits that his vehicle was legitimately stopped because of a traffic violation. However, "[a]...