State v. Gordon

• Decision Date: 10 November 1994
• Docket Number: No. 93 KA 1923.,93 KA 1923.
• Citation: 646 So.2d 1005
• Parties: STATE of Louisiana, v. Shirley GORDON.
• Court: Court of Appeal of Louisiana — District of US

646 So.2d 1005

STATE of Louisiana, v. Shirley GORDON.

No. 93 KA 1923.

Court of Appeal of Louisiana, First Circuit.

November 10, 1994.

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Doug Moreau, Dist. Atty., Baton Rouge, for State of La.

Eugene A. Booth, Baton Rouge, for defendant-appellant.

Before CRAIN, FOIL and WHIPPLE, JJ.

CRAIN, Judge.

Defendant, Shirley Gordon, and co-defendants Jacob Gordon, Jr., and James Douglas¹ were jointly charged by bill of information with possession with intent to distribute cocaine, violations of LSA-R.S. 40:967A. Defendant and co-defendant Jacob Gordon, Jr., were jointly tried by jury, and both were found guilty as charged. The trial court sentenced defendant to imprisonment at hard labor for five years with credit for time served. Defendant has appealed, urging three assignments of error:²

1. The jury's verdict is contrary to the law and the evidence introduced at the trial of this case.

2. The trial court erroneously refused to suppress for use as evidence at the trial items seized during warrantless searches by the police on or about January 8, 1993, of the persons of "defendants" and of the automobile in which they were riding.³

At about 12:45 a.m. on January 8, 1993, Baton Rouge City Police Officers Lyle Johnson and Wally Cowart were together in their marked police unit patrolling the interstate in East Baton Rouge Parish when they observed a 1982 Pontiac passenger automobile traveling eastbound on I-12 without a license plate on it, a violation of state law. They pursued the car and stopped it on I-12 near the O'Neal Lane exit.

At Johnson's request, Jacob Gordon (defendant's husband), the driver of the car, exited the car and stepped to its rear. Johnson asked Jacob Gordon for his driver's license and questioned him concerning the ownership of the car and the absence of a license plate on the vehicle. While engaging Jacob Gordon in this conversation, Johnson smelled what he thought was the odor of burned marijuana on Jacob's person.

Meanwhile, Cowart, who had been standing at the front of the police unit a few feet behind Johnson and Jacob Gordon listening to their conversation decided to approach the passenger side of the Pontiac to see who might be in the car. When Cowart went to the passenger side of the car at the open front window, he smelled what he believed to be the odor of marijuana coming from the interior of the vehicle. While outside the car shining his flashlight inside the car at defendant, who was seated on the front passenger seat with her purse in her lap, Cowart observed in plain view a cellophane baggy containing some white powder in defendant's purse. He suspected the powder was cocaine.

At that point, Cowart had defendant and James Douglas, the backseat passenger, exit the car and walk to the police unit. Cowart conferred with Johnson. The three subjects were placed under arrest, and Johnson advised all three of their Miranda rights and patted down each of them. Cowart searched the passenger compartment of the Pontiac, and seized a blue bag from the backseat area of the car, a film canister that was found in the console area between the front seats of the car and defendant's purse, which was jointly searched by the officers.

The subjects were transported to the narcotics office. A search of Jacob Gordon by Johnson, conducted after Jacob Gordon's arrest and apparently at the narcotics office, yielded $2,190.00 and some business cards which were found inside Jacob Gordon's wallet. No drugs were found on Jacob Gordon's person. In addition to various items of drug paraphernalia found in the console area of the car, the blue bag and defendant's purse, a baggy containing approximately one gram of suspected cocaine and two baggies containing a total of about five grams of suspected marijuana were found in defendant's purse. There also was a film canister in the blue bag which contained about one-tenth gram of suspected cocaine. Additionally, a suspected marijuana roach was found in the blue bag, and several other marijuana roaches were recovered from defendant's purse. Results of subsequent laboratory chemical analyses as reflected in the laboratory report, State Exhibit S-1 determined the suspected items to be cocaine and marijuana, respectively.

DENIAL OF MOTION TO SUPPRESS

Defendant asserts that the trial court erroneously denied the motion to suppress physical evidence seized from the Pontiac and from Jacob Gordon's person on the basis that the searches were illegal.⁴ However, the only argument advanced by defendant is that the cocaine found in her purse was neither in plain view of Cowart nor was it inadvertently discovered by him.

Initially, we note that defendant does not contest the validity of the investigatory stop of the Pontiac. Clearly, the record supports a finding that the stop was based on reasonable suspicion, since the car was being operated without the required license plate in violation of state traffic laws. See LSA-R.S. 47:507 & 537; LSA-R.S. 32:51 & 57.

At the conclusion of the suppression hearing, the trial court denied the motion to suppress and indicated that it credited the testimony of Officers Johnson and Cowart and not that of defendant. More particularly, the court stated that it believed that the officers smelled the odor of marijuana at the scene of the stopped vehicle and that the contraband was seen in plain view. This determination turned on credibility. We find no error in the trial court's finding, which we must give great weight. State v. Keller, 403 So.2d 693, 696 (La.1981); State v. Hale, 481 So.2d 1056, 1059 (La.App. 1st Cir.1985), writ denied, 484 So.2d 668 (La.1986).

The Fourth Amendment to the United States Constitution and Article I, § 5, of the Louisiana Constitution prohibit unreasonable searches and seizure. A warrantless search 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, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Tatum, 466 So.2d 29, 31 (La.1985). One of these exceptions is a search incident to a lawful arrest made of a person and the area in his immediate control. State v. Raheem, 464 So.2d 293, 296 (La.1985). Another exception is the "automobile" exception which is based upon the existence of probable cause to search the vehicle and exigent circumstances which render it impractical to secure a warrant. State v. Gamboa, 543 So.2d 1129, 1131 (La.App. 1st Cir.), writ denied, 550 So.2d 646 (La.1989).

The present standard for warrantless "automobile" searches under the Fourth Amendment was expressed in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In Ross, 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 it may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant particularly describing the place to be searched. 456 U.S. at 825, 102 S.Ct. at 2173. "The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found." 456 U.S. at 824, 102 S.Ct. at 2172.

For constitutional purposes, there is no difference between, on the one hand, seizing and holding a car before presenting the probable cause issue to a magistrate and, on the other hand, carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment and the Louisiana Constitution. State v. Tatum, 466 So.2d at 31.

Clearly here, there was probable cause to search the vehicle under the automobile exception and to arrest the three subjects and conduct searches of each of them as incidents to those lawful arrests.⁵ Both officers were experienced in narcotics investigation and detection.⁶ Johnson testified that he detected the odor of burned marijuana on Jacob Gordon's person when Jacob exited the Pontiac and engaged in conversation with him. Likewise, when Cowart walked up to the open window at the passenger door of the car to talk to defendant, he too smelled the odor of marijuana. Detecting marijuana by means of smell does not constitute a search, and there is no reasonable expectation of privacy from lawfully positioned officers with inquisitive nostrils. See State v. Garcia, 519 So.2d 788, 793-794 (La.App. 1st Cir.1987), writ denied sub nom., State v. Rodgriguez, 530 So.2d 85 (La.1988). Furthermore, the information obtained as a result of observation of an object in plain view may be considered in determining probable cause or reasonable suspicion of criminal activity. See Texas v. Brown, 460 U.S. 730, 738, 103 S.Ct. 1535, 1541 n. 4, 75 L.Ed.2d 502 (1983). See also State v. Bracken, 506 So.2d 807, 812 (La.App. 1st Cir.), writ denied, 511 So.2d 1152 (La.1987) (in which this court stated that the plain view doctrine provides a means of securing probable cause). Notwithstanding any assertion by defendant to the contrary, Cowart's testimony revealed that he observed the baggy containing the white substance which he suspected was cocaine in plain view⁷ inside defendant's purse after he walked up to the Pontiac and while he was talking to her from outside the car.⁸

Under the circumstances present herein, the trial court's ruling denying the motion to suppress is supported by the record. Thus, defendant's assignment lacks merit.

SUFFICIENCY OF THE EVIDENCE

Defendant asserts that the evidence was insufficient to convict her of the instant offense. She argues that the small quantity of cocaine recovered by the police is insufficient to reasonably conclude that she intended to distribute cocaine.

The proper method to raise the issue of insufficient...