State v. Guzman

• Decision Date: 05 September 1978
• Docket Number: No. 61328,61328
• Citation: 362 So.2d 744
• Parties: STATE of Louisiana v. Gilbert Feigado GUZMAN.
• Court: Louisiana Supreme Court

Page 744

362 So.2d 744

STATE of Louisiana v. Gilbert Feigado GUZMAN.

No. 61328.

Supreme Court of Louisiana.

Sept. 5, 1978.

Eugene P. Cicardo, Camille J. Giordano, Alexandria, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Edward E. Roberts, Jr., Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

Gilbert Guzman was indicted for possession of heroin with intent to distribute, in violation of R.S. 40:966(A)(1). The original indictment charged defendant jointly with his wife, Alma Guzman, and Robert Rodriguez. On motion of defendants, a severance was granted and, on September 20, 1977, defendant proceeded to trial alone. On September 23, 1977 the jury found him guilty by an eleven to one vote. Subsequently he was sentenced to life imprisonment at hard labor.

On appeal, defendant relies upon seven assignments of error for reversal of his conviction and sentence.

Assignment of Error No. 1

In defendant's most serious assignment of error, he alleges that the warrantless search of the automobile which uncovered the heroin violated his constitutional right against unreasonable searches and seizures, and he argues that the trial judge erred in overruling the motion to suppress.

The heroin was seized about 10:00 o'clock at night on December 16, 1976 after the car in which defendant was a passenger was stopped by police about four miles north of Glenmora on Highway 165. The car was stopped because the police suspected it contained a pound of heroin in transit from San Antonio, Texas to Alexandria, Louisiana. The police had actually arranged for the delivery of the heroin seized and possessed substantial information concerning the shipment, but did not believe they knew enough to obtain a search warrant of the car based on probable cause. That belief was proved correct by the evidence, as well as their conclusion that suspicion ripened into probable cause when Guzman was identified as an occupant of the car.

What the police knew began with the July, 1976 vacation trip by Tom Bates, a communications worker employed by the Louisiana State Police. On his return from a camping trip in Texas, Bates reported to a police narcotics officer an encounter in San Antonio with one Joel Garcia, who offered to sell Bates marijuana, and expressed interest in distributing drugs in Alexandria. When the first report failed to generate any activity, Bates told his story to Noel Hood Reed, a young State Police narcotics officer. Reed began to communicate, through Bates, with Garcia, who had given his phone number to Bates. Reed and Bates made two trips to San Antonio to purchase drugs, and on one trip bought two and one-half ounces of heroin from Garcia. Hood communicated with federal Drug Enforcement Administration officials in San Antonio.

In December of 1976 Garcia called Bates in Alexandria about selling a pound of heroin. Two bus tickets were sent to Garcia for him to come to Alexandria to make arrangements for the sale. Garcia came alone, however, bringing a very small quantity of what he said was a sample of the heroin. Garcia and Reed both purported to represent undisclosed principals. $16,000 in cash was displayed to Garcia, who then called his man in San Antonio, identified by him as "Mr. G." or "Gene." When the deal was about closed, Garcia's principal told him to send, to demonstrate good faith, $200.00 by Western Union in San Antonio, payable to Gilbert Guzman. This demand aroused suspicions in Reed that the police involvement had been discovered. Reed told Garcia the deal was off, and that he would escort Garcia to the bus station to return to San Antonio. Reed and Garcia then left Bates' apartment; instead of taking Garcia to the bus station, Reed took him to the police station where Garcia was booked.

During this time, "Gene" from San Antonio called Bates' apartment for Garcia; Bates told "Gene" the deal was off because of the $200.00 demand; "Gene" asked Bates to intercept Garcia at the bus station and await another call from "Gene" at 7:00 o'clock. At 7:00 o'clock, "Gene" called again, and Bates convinced him that Garcia was out of the apartment for a brief time. "Gene" responded that the demand for the $200.00 advance was abandoned and that "they" would leave San Antonio around noon the next day and drive to Alexandria to consummate the transaction. Garcia had previously indicated that "Gene" would probably be accompanied by "Uncle," an older Mexican male with silver hair.

On the morning of December 16 Reed contacted special agent Rudy Gonzales of the Drug Enforcement Administration, told him the situation, and sought any information he might have on Gilbert Guzman. Gonzales surmised (his reasons are not explained) that the sellers would probably be driving either a late model silver 2-door Chevrolet coupe or a blue 1972 Lincoln with a white top. Gonzales did not have license plate numbers, but knew that both cars had Texas plates and that license numbers issued in the San Antonio area began with an "E." Additionally, Gonzales was able to supply a description of both Guzman and "Uncle."

On the afternoon of December 16 Reed and other officers set up surveillance at the intersection of Highways 113 and 165 in Glenmora, Louisiana, believing this to be the most likely route for travelers from San Antonio to Alexandria. Reed and Trooper Burnes, the driver, were positioned on the shoulder of the intersection at Glenmora's only traffic light. At about 10:00 p. m., a silver 2-door Chevrolet coupe stopped at the traffic light. The officers observed a driver and a passenger in the front seat who fit the descriptions they had been given. When the car subsequently proceeded through the green light, they noticed that it had a Texas license plate with an "E" as the first letter.

Burnes and Reed followed the suspects for several miles without a siren or flasher in order to allow the positioning of other police vehicles. About four miles north of Glenmora, they pulled the Chevrolet over to the shoulder of the road, parking their own marked police vehicle somewhat behind it. Fixing the Chevrolet in their spotlight, they noticed a third passenger, a woman, in the back seat. The driver of the Chevrolet hurried back to meet Burnes at the front of the police car and presented him with a California driver's license identifying him as one Robert Rodriguez. At Reed's direction the male passenger, the defendant, got out of the vehicle; Reed addressed defendant as "Mr. Guzman" and told him to move to the front of the car and produce his driver's license, which confirmed his identification. Finally, the woman got out, was identified as defendant's wife, Alma, and all were patted down and given a reading of Miranda rights.

Without seeking permission, the officers then searched the car. Taking the keys from the ignition, they opened the trunk but found nothing there. In the back seat they found a woman's purse. They opened it and found a small amount of marijuana. When the woman identified the purse as hers, she was placed under arrest for possession of marijuana. They continued their search of the car and found a one pound packet of grayish powder inside a brown paper sack taped under the dashboard on the passenger side. The powder was shown to be heroin by a field test. All three were then arrested for possession of heroin with intent to distribute. Reed testified that none of those arrested had ever been free to leave after the car was stopped.

It is well established that warrantless searches and seizures are per se unreasonable under the Fourth Amendment of the United States Constitution and Article 1, § 5 of the Louisiana Constitution of 1974, unless they fall within a limited number of well delineated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Parker, La., 355 So.2d 900 (1978); State v. Lain, La., 347 So.2d 167 (1977).

The only applicable exception has been termed the "automobile emergency exception" outlined in the United States Supreme Court case of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In Carroll the court recognized a distinction:

". . . between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." 267 U.S. at 153, 45 S.Ct. at 285, 69 L.Ed. at 551.

Carroll, and subsequent United States Supreme Court cases, made clear that a warrantless search of an automobile may be justified by necessity arising out of the mobility and imminent disappearance of the vehicle. See Coolidge v. New Hampshire, supra; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The cases set out two conditions that must be satisfied before a warrantless search of a movable vehicle is authorized: (1) there must be probable cause to believe that the vehicle contained contraband or evidence of a crime; and (2) there must be "exigent circumstances" requiring an immediate warrantless search, i. e., the impracticability of obtaining a warrant due to the possibility that the car could be moved either by its occupants, if not arrested, or by someone else. 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." Chambers v. Maroney, supra, 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428.

Defendant initially contends that the police officers had no probable cause to stop the vehicle. Alternatively he...