State v. Curtis

• Decision Date: 27 July 1999
• Docket Number: No. 99-KA-45.,99-KA-45.
• Citation: 739 So.2d 931
• Parties: STATE of Louisiana v. Willie F. CURTIS.
• Court: Court of Appeal of Louisiana — District of US

739 So.2d 931

STATE of Louisiana v. Willie F. CURTIS.

No. 99-KA-45.

Court of Appeal of Louisiana, Fifth Circuit.

July 27, 1999.

Paul D. Connick, District Attorney, Terry M. Boudreaux, Assistant D.A., Thomas Butler, David Wolff, Gretna, LA, for Plaintiff-Appellee.

Thomas M. Calogero, New Orleans, LA, for Defendant-Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and ROBERT LOBRANO, Judge Pro Tempore.

DUFRESNE, Judge.

The Jefferson Parish District Attorney filed a bill of information charging the defendant, Willie F. Curtis, with illegal carrying of a weapon by a convicted felon, in violation of LSA-R.S. 14:95.1. The matter proceeded to trial before a twelve person jury, at the conclusion of which the defendant was found guilty as charged. The court thereafter sentenced the defendant to twelve years at hard labor. It is from this conviction and sentence that the defendant now appeals.

FACTS

On December 9, 1997, at approximately 11:57 p.m., Deputies Jody Fruchtnicht and Brian Schuyler of the Jefferson Parish Sheriff's Office, stopped a gray 1995 Chevy Corsica on Jefferson Highway because the vehicle did not have a brake tag. As this was an area known as both a high crime and drug area, the officers ordered both the driver of the vehicle, Willie Curtis, and the front seat passenger, Jamar Daniels, to exit the vehicle. The defendant quickly exited the Corsica, slammed the door, and approached the rear of the car. Daniels did not immediately get out of the car, so Officer Schuyler told him again to exit. As Daniels was exiting the vehicle, Officer Schuyler walked to the passenger's side and shone his flashlight in the vehicle so that he could observe Daniels' hands. At that point, Officer Schuyler observed what appeared to be crack cocaine on the floorboard of the passenger's side. The officers then advised both subjects of their rights, placed them under arrest for narcotics violations, and secured them in the police unit. After the arrests, the officers performed an inventory search of the Corsica.

Officer Schuyler opened the passenger's side door and recovered the crack cocaine from the floorboard. Officer Fruchtnicht opened the driver's side door, and using his flashlight, illuminated the interior of the car. The officer immediately observed a gun on the driver's side of the vehicle, protruding up between the seat and the console. Officer Fruchtnicht retrieved the weapon from the driver's side and removed a live round from the gun. At trial, Officer Fruchtnicht testified that the Corsica driven by the defendant was registered to Noel Epps and that the gun was not registered.

After the state presented its case, the defense produced evidence to show that both the car and the gun belonged to Noel Epps, the girlfriend of Jamar Daniels. The defense also elicited testimony from Richard Sharp, a car salesman, to show that because of the space between the seat and the console, it would have been impossible for the gun to have been protruding upward in plain view as contended by the officers.

DENIAL OF MOTION TO SUPPRESS

In his first assigned error, the defendant contends that the trial court erred in denying his motion to suppress evidence. The defendant specifically contends that the deputy's search of the vehicle and the subsequent discovery of the cocaine¹ and the weapon was not supported by either the plain view doctrine or the automobile exception to the search warrant requirement. We find no merit to the defendant's argument. Based on the discussion which follows, we conclude that the weapon was lawfully seized pursuant to the automobile exception to the search warrant requirement.

Unlawful searches and seizures are prohibited by the Fourth Amendment to the United States Constitution and Article I, Section 5 of the Louisiana Constitution. Generally, searches may be conducted only pursuant to a warrant which has been issued by a judge on the basis of probable cause. LSA-C.Cr.P. art. 162. Warrantless searches and seizures are unreasonable per se unless justified by one of the specific exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The state bears the burden of proving that one of these exceptions applies. State v. Tatum, 466 So.2d 29 (La. 1985). The question of whether evidence was seized in violation of the Fourth Amendment is one for the trial judge, whose factual determinations are entitled to great weight on appeal. State v. Bailey, 97-493 (La.App. 5 Cir. 11/12/97), 703 So.2d 1325. In State v. Russell, 98-682 (La.App. 5 Cir. 1/13/99), 726 So.2d 444, this court discussed the automobile exception to the warrant requirement as follows:

Automobiles are accorded less protection against warrantless searches due to their inherent mobility and a citizen's lesser expectation of privacy. State v. Bailey, 97-493 (La.App. 5th Cir. 11/12/97), 703 So.2d 1325, 1328. The current standard for warrantless searches of automobiles under the Fourth Amendment was expressed in United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982). In that case, the United States Supreme Court held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed within may conduct a search of the vehicle that is as thorough as a magistrate could require in a warrant. See also: California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991).

The "automobile exception," to the warrant requirement is based upon the existence of probable cause to search and exigent circumstances. State v. Tatum, 466 So.2d at 31. Probable cause to search an automobile exists when the total circumstances allow the conclusion that there is a fair probability that contraband or evidence of a crime will be found in a particular location. State v. Pittman, 95-382 (La.App. 5th Cir.10/1/96), 683 So.2d 748, 764. For constitutional purposes, there is no difference between seizing and holding a car before presenting the probable cause issue to a magistrate and carrying out an immediate search without a warrant. State v. Tatum, 466 So.2d at 31; State v. Pittman, 683 So.2d at 764. Given probable cause to search, either course is reasonable under the Fourth Amendment and Louisiana Constitution. State v. Tatum, 466 So.2d at 31; State v. Pittman, 683 So.2d at 764.

Exigent circumstances exist when it is impractical to obtain a warrant due to the possibility that the car could be moved either by its occupants, if not arrested, or by someone else. State v. Tatum, 466 So.2d at 31-32; State v. Pittman, 683 So.2d at 764. An immediate warrantless search is therefore constitutionally permissible when the car is movable, the occupants are alerted and the car's contents may never be found again if a warrant must be obtained. State v. Tatum, 466 So.2d at 32; State v. Pittman, 683 So.2d at 764; State v. Zapata, 97-1230 (La.App. 5th Cir.5/27/98), 713 So.2d 1152, 1160.

Applying these principles to the instant case, we find that both probable cause and exigent circumstances existed so as to justify the search and subsequent seizure of the weapon. In the course of ordering the occupants out of the car pursuant to a valid traffic stop, Officer Schuyler observed crack cocaine in plain view on the floorboard of the vehicle. Moreover, an immediate search of the vehicle was necessitated by the car's location in a high crime area at night. Also the possibility existed that someone, including the car's owner, could move the car and any evidence therein.²

Given these circumstances, we find no error in the trial court's denial of the defendant's motion to suppress the evidence. Accordingly, this assignment lacks merit.

DENIAL OF MOTION IN LIMINE

In this assignment, the defendant complains that the trial judge erred in denying his motion in limine which sought to exclude evidence of the cocaine that was found by Officer Schuyler on the floor-board of the passenger's side of the vehicle.

In the present case, defense counsel filed a motion in limine seeking to preclude the admission of other crimes evidence and more particularly of the discovery of the cocaine which occurred prior to the discovery of the weapon which forms the basis for the instant charge. After listening to the arguments of counsel, the trial court denied the defendant's motion in limine, stating as follows:

This Court finds that the fact that there was cocaine found in the vehicle under the circumstances of that stop is part of the res gestae that does, in fact, tell the complete story, and that its probative value clearly outweighs any prejudicial value.

Generally, evidence of other crimes is inadmissible at trial because of the substantial risk of grave prejudice to the defendant. While our Code of Evidence prohibits the use of evidence of other crimes or wrongful acts to prove the character of a person in order to show that he acted in conformity therewith, such evidence is admissible "when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding." LSA-C.E. art. 404B(1). Formerly known as "res gestae," evidence that constitutes an integral part of the crime is admissible without prior notice to the defense. State v. Hopson, 97-509 (La.App. 5 Cir. 11/25/97), 703 So.2d 767.

In State v. Brewington, 601 So.2d 656 (La.1992), the Louisiana

Supreme Court stated:

This court has approved the admission of other crimes evidence when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. State v. Boyd, 359 So.2d 931, 942 (La.1978); State v. Clift, 339 So.2d 755, 760 (La. 1976). In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on

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