State v. Dupart
| Decision Date | 16 October 2019 |
| Docket Number | NO. 2019-KA-0521,2019-KA-0521 |
| Citation | 280 So.3d 1214 |
| Parties | STATE of Louisiana v. Kevin DUPART |
| Court | Court of Appeal of Louisiana — District of US |
Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, ASSISTANT DISTRICT ATTORNEY, Irena Zajickova, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano )
This is an appeal of the trial court's denial of defendant, Kevin Dupart's Motion to Suppress the Evidence. On February 22, 2019, Mr. Dupart entered a Crosby plea of guilty1 to several charges, while reserving his right to appeal the trial court's decision denying this motion.
After our review of the record and applicable law, we find that the trial court properly denied Mr. Dupart's motion to suppress. Accordingly, and for the reasons that follow, we affirm Mr. Dupart's conviction and sentence.
By bill of information dated December 19, 2018, Mr. Dupart was charged with several offenses: (1) possession of a firearm or weapon by a felon, a violation of La. R.S. 14:95.1 ; (2) possession of marijuana in an amount less than fourteen grams, a violation of La. R.S. 40:966(C)(2A) ; (3) possession of a firearm with an obliterated serial number, a violation of La. R.S. 14:95.7 ; and (4) illegal possession of a stolen firearm, a violation of La. R.S. 14:69.1. In addition, the State charged Mr. Dupart as a multiple offender, a violation of La. R.S. 15:529.1. The multiple offender charge stemmed from a February 22, 2019 guilty plea to a charge of illegal possession of a stolen firearm and a June 26, 2017 guilty plea to a charge of possession of a controlled dangerous substance (methamphetamine).
Mr. Dupart entered a plea of not guilty to the charges on January 14, 2019, and filed several motions, including a motion to suppress statements and evidence. A hearing took place on February 22, 2019, at which time the trial court found probable cause and denied the motion to suppress. Mr. Dupart then withdrew his prior plea and entered a plea of guilty to all counts, reserving his right to appeal the ruling on the motion to suppress under Crosby .
Mr. Dupart waived sentencing delays and was sentenced as follows: as to count one, Mr. Dupart was sentenced to five years in the custody of the Department of Corrections without the benefit of probation, parole, or suspension of sentence, with credit for time served; as to count two, Mr. Dupart was sentenced to fifteen days in the custody of the sheriff with credit for time served; as to count three, Mr. Dupart was sentenced to serve one year in the custody of the Department of Corrections with credit for time served; and as to count four, possession of a stolen firearm, Mr. Dupart was sentenced to serve one year in the custody of the Department of Corrections with credit for time served. The trial court ordered all sentences run to concurrently; all fines and court costs were waived.
The State then filed a multiple bill of information in accordance with La. R.S. 15:529.1, charging Mr. Dupart as a second offender with respect to the counts three and four, to which Mr. Dupart entered a guilty plea. With respect counts three and four, the trial court vacated the previous sentences and sentenced Mr. Dupart to serve twenty months in the custody of the Department of Corrections on each charge, with credit given for time served and with all sentences to run concurrently.
This appeal followed.
We have reviewed the record for errors patent and found none. See State v. Lambert , 15-0886, p. 5 n.6 (La. App. 4 Cir. 1/20/16), 186 So.3d 728, 733, writ denied , 16-0335 (La. 2/17/17), 216 So.3d 50, cert. denied , ––– U.S. ––––, 138 S. Ct. 92, 199 L. Ed. 2d 187 (2017).
In Mr. Dupart's sole assignment of error, he contends that the trial court erred in denying his motion to suppress.2 In this regard, he argues that the police officers who arrested him "lacked reasonable suspicion to approach" him, that the conditions were "tantamount to an arrest" and therefore, the officers had "no reasonable grounds for the search" of him or his bag "without a warrant." As such, he argues, without the requisite probable cause, "[t]he investigatory stop ... tainted the fruits of the search and the taking of the alleged statement."
At the outset, we note our well-settled jurisprudence that an appellate court is to review the district court's findings of fact on a motion to suppress under a clearly erroneous standard, while the review of the district court's ultimate determination of Fourth Amendment reasonableness is de novo . State v. Everett , 13-0322, p. 4 (La. App. 4 Cir. 3/26/14), 156 So.3d 705, 709 (citing State v. Dorsey , 00-2331, p. 1 (La. App. 4 Cir. 1/24/01), 779 So.2d 1008, 1009, U.S. v. Seals , 987 F.2d 1102 (5th Cir.1993), cert. denied , 510 U.S. 853, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993) ). "On mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo ." Id. , pp. 4-5, 156 So.3d at 709 (citing Dorsey , 00-2331, p. 1, 779 So.2d at 1009 ). Furthermore, a trial court's decision as to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. Id. (citing State v. Wells , 08-2262, p. 5 (La. 7/6/10), 45 So.3d 577, 581 ). When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not disturb those findings unless there is no evidence to support them. Id. (citing State v. Thompson , 11-0915, pp. 13-14 (La. 5/8/12), 93 So.3d 553, 563 ).
The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution of 1974 prohibit unreasonable searches and seizures. See , e.g. , State v. Watts , 17-0208, p. 6 (La. App. 4 Cir. 6/28/17), 223 So.3d 1187, 1190. A search without a warrant is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973) ; State v. Warren , 05-2248, p. 13 (La. 2/22/07), 949 So.2d 1215, 1226 ; Watts , 17-0208, p. 6, 223 So.3d at 1190 ; State v. Kirk , 00-0190, p. 2 (La. App. 4 Cir. 11/13/02), 833 So.2d 418, 420. "The State bears the burden of proving that one of these exceptions applies." State v. Cooper , 16-1093, p. 9 (La. App. 4 Cir. 7/5/17), 223 So.3d 573, 580, writ denied , 17-1205 (La. 5/11/18), 241 So. 3d 1017, writ denied , 17-1351 (La. 5/11/18), 241 So.3d 313 (citing Coolidge v. New Hampshire , 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ; State v. Tatum , 466 So.2d 29 (La. 1985) ).
Louisiana law clearly allows a police officer to conduct a brief investigatory stop when the officer has a reasonable articulable suspicion of criminal activity. As La. C.Cr.P. art. 215.1A expressly provides, "[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions." This statute is a codification of the United States Supreme Court decision of Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which authorized a stop based on reasonable suspicion. State v. Miguel , 16-1242, p. 4 (La. App. 4 Cir. 2/1/17), 211 So.3d 426, 428, writ denied , 17-0400 (La. 4/13/17), 218 So.3d 630.
As we explained in State v. Everett , 13-0322, p. 6 (La. App. 4 Cir. 3/26/14), 156 So.3d 705, 710 :
In making a brief investigatory stop on less than probable cause to arrest, the police " ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ " State v. Temple , 02-1895, pp. 4-5 (La. 9/9/03), 854 So.2d 856, 859-860. (internal citations omitted). The police must therefore "articulate something more than an ‘inchoate and unparticularized suspicion or ‘hunch.’ " Id. , 02-1895, p. 4, 854 So.2d at 860, quoting United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry , 392 U.S. at 27, 88 S.Ct. at 1883 ). This level of suspicion, however, need not rise to the probable cause required for a lawful arrest. The police need have only " ‘some minimal level of objective justification. ...’ " Id. (internal citations omitted).
As this Court has further recognized:
Reasonable suspicion for an investigatory stop "is something less than probable cause for arrest." State v. Fogan , 609 So.2d 1016, 1018 (La. App. 4th Cir.1992). See also [ Minnesota v.] Dickerson , 508 U.S. [366] at 373, 113 S.Ct. 2130 [124 L.Ed.2d 334 (1993) ] ; Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). This review is "an objective inquiry into the totality of the circumstances surrounding the encounter," State v. Dumas , 00-0862, p. 2 (La. 5/4/01), 786 So.2d 80, 81 (citing State v. Kalie , 96-2650, p. 3 (La. 9/19/97), 699 So.2d 879, 881 ), and calls for consideration of whether "the facts available to the officer at the moment of the seizure ... warrant a man of reasonable cause in the belief that the action taken was appropriate." Terry , 392 U.S. at 21-22, 88 S.Ct. 1868 (internal quotations and punctuation omitted)(emphasis added).
State v. Carter , 13-1452, p. 8 (La. App. 4 Cir. 12/19/13), 131 So.3d 479, 488, writ denied , 14-0013 (La. 1/21/14), 130 So.3d 952.
The Louisiana Supreme Court has further indicated:
In determining whether the police possessed the requisite " ‘minimal...
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