State v. Gilmartin
| Citation | 289 So.3d 115 |
| Decision Date | 15 January 2020 |
| Docket Number | NO. 2019-KA-0629,2019-KA-0629 |
| Parties | STATE of Louisiana v. Colin GILMARTIN |
| Court | Court of Appeal of Louisiana (US) |
289 So.3d 115
STATE of Louisiana
v.
Colin GILMARTIN
NO. 2019-KA-0629
Court of Appeal of Louisiana, Fourth Circuit.
JANUARY 15, 2020
Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, Chief of Appeals, Scott G. Vincent, Assistant District Attorney, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
Frank Gerald DeSalvo, Shannon Regeci Bourgeois, FRANK G. DESALVO, APLC, 739 Baronne Street, New Orleans, LA 70113, COUNSEL FOR APPELLANT/DEFENDANT
(Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods )
Judge Regina Bartholomew-Woods
Defendant, Colin Gilmartin, seeks review of the trial court's judgment denying his motion to suppress evidence gathered during the execution of an April 18, 2018 search warrant. For the reasons that follow, we affirm the trial court's ruling on the motion to suppress the evidence. Accordingly, defendant's conviction and sentence are affirmed.
BACKGROUND
On October 24, 2018, the State filed a bill of information charging Defendant with possession with intent to distribute marijuana greater than 2.5 pounds, a violation of La. R.S. 40:966(B)(2)(b) ; possession with intent to distribute cocaine greater than 28 grams, a violation of La. R.S. 40:967(B)(1)(b) ; possession with intent to distribute MDMA greater than 28 grams, a violation of La. R.S. 40:966(B)(1)(b) ; possession with intent to distribute methamphetamine less than 28 grams, a violation of La R.S. 40:967(B)(1)(a) ; possession with intent to distribute Clonazepam, a violation of La. R.S. 40:969(B)(2) ; possession with intent to distribute Carisoprodol, a violation of La. R.S. 40:1060.13 ; possession with intent to distribute Lisdexamfetamine less than 28 grams, a violation of La. R.S. 40:967(B)(1)(a) ; possession with intent to distribute amphetamine less than 28 grams, a violation of La. R.S. 40:967(B)(1)(a) ; possession with intent to distribute Buprenorphine, a violation of La. R.S. 40:968(B) ; and possession of drug paraphernalia, a violation of La. R.S. 40:1023.
On November 16, 2018, Defendant appeared for arraignment and entered a plea of not guilty as to each charge. On December 7, 2018, Defendant appeared for a discovery hearing at which time a hearing on the motions was set for December 11, 2018. At the December 11, 2018 hearing,
Defendant made an oral motion to suppress the evidence due to a defective search warrant. On December 12, 2018, the State filed its memorandum in opposition to Defendant's motion to suppress the evidence. On January 3, 2019, Defendant filed his memorandum in support of his motion to suppress the evidence. On January 4, 2019, the trial court found probable cause, and denied Defendant's motion to suppress the evidence.
On January 30, 2019, Defendant filed a motion to reopen the suppression hearing, which was granted. On February 15, 2019, the trial court conducted a hearing on the motion to suppress the evidence and a preliminary examination hearing. Following testimony and argument, the trial court, once again, denied Defendant's motion to suppress the evidence. On March 18, 2019, Defendant withdrew his prior pleas of not guilty and entered pleas of guilty as charged; however, he reserved his right to appeal the trial court's denial of his motion to suppress the evidence as per State v. Crosby , 338 So.2d 584 (La. 1976). As to counts one through nine, the trial court sentenced Defendant to two years incarceration at hard labor at the Department of Corrections. However, the sentences were suspended and Defendant was placed on two years active probation as to each count, with the sentences to run concurrently. As to count ten, Defendant was sentenced to 90 days at Orleans Parish Prison. This sentence was also suspended and Defendant was placed on one year active probation. Defendant was given credit for time served.
At the January 4, 2019 hearing, Defendant argued that a search warrant cannot be overly broad. The application for search warrant at issue reads as follows:
THAT , a Search Warrant should be issued for the following described residence, curtilage, vehicles and any and all movables located on said curtilage: 2915 Upperline Street New Orleans, LA, 70115 The multi-unit residence at 2915 Upperline Street, New Orleans, Louisiana, is described a [sic] two story building with light blue siding, light gray colored shingle roof. All of the residences have a second story and the entrances are on the ground floor. All of the entry ways [sic] face the South side of the property line. GILMARTIN's apartment entryway is located on the South side of the property line and is the last door down the right alleyway in the complex.
The search warrant issued in response to the application describes the property as follows:
AFFIDAVIT(S) HAVING BEEN MADE BEFORE ME BY Detective Andrew Roccaforte, of the New Orleans Police Department , that they have good reason to believe that on or in a residence located at 2915 Upperline Street New Orleans, LA, 70115 located within the PARISH OF ORLEANS, STATE OF LOUISIANA, there is now being concealed certain property, namely....
Defendant resided in Unit D of the dwelling and contends that the search warrant issued did not identify his apartment unit; therefore, the search warrant was too broad. The trial court, in denying Defendant's motion to suppress, found that there was no error or mistake in the description of the property to be searched.
At the February 15, 2019 hearing to reopen Defendant's motion to suppress, Defendant called two witnesses. Defendant's first witness, Marcus Lott, testified that he lived at 2915 Upperline, Unit A. Mr. Lott testified that the building is a four-plex and that his apartment was to the left of the building. On direct examination, Mr. Lott testified that on the day of
Defendant's arrest he was home and someone knocked on his door, whom he was "pretty sure it was officers." He further testified that he did not answer the door or see who had knocked, but he could "definitely hear them outside talking to my neighbor." On cross-examination Mr. Lott testified that he paid his rent to Defendant and that Defendant "may own [the apartment]." Mr. Lott also testified that the officers did not enter his...
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