State v. Johnson
| Decision Date | 23 September 1987 |
| Docket Number | No. 18877-KA,18877-KA |
| Citation | 513 So.2d 832 |
| Parties | STATE of Louisiana, Appellee, v. Lee JOHNSON, a/k/a Lemah Johnson, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Culpepper, Teat, Caldwell & Avery by Bobby L. Culpepper, Johnesboro, for appellant.
William J. Guste, Jr., Atty. Gen., John C. Blake, Dist. Atty., John Michael Ruddick, Asst. Dist. Atty., for appellee.
Before FRED W. JONES, Jr., SEXTON and NORRIS, JJ.
The defendant Johnson was convicted by a jury of possession of cocaine with intent to distribute (La.R.S. 40:967[A]. He was sentenced to pay a fine of $5000 and serve 12 years in prison.
The defendant appealed his conviction and sentence, reserving numerous assignments of error.
On the night of February 19, 1986 Trooper Pepper of the Louisiana State Police received a telephone call from a confidential informant ("CI") who stated that some cocaine would be arriving the next morning before 9:00 o'clock at the Homer bus station (the parking lot of Keith's Food Mart). The telephone message also reported the cocaine was being transported in a bank bag by a black courier and was to be delivered to one Lee Johnson, who possessed the key to the bank bag.
After checking the bus schedules and learning that a bus was to arrive in Homer at 8:30 A.M. on February 20, 1986, Trooper Pepper and Deputy Williams set up surveillance on Keith's Food Mart at about 8:00 that morning. Around 8:30 A.M. a bus arrived. A few white passengers disembarked but only one black, carrying a duffle bag, got off. He proceeded to a pay telephone and dialed a number. A few minutes later he returned to the pay telephone and began to dial again when Lee Johnson drove up in his pickup truck. The black male got into the truck with his duffle bag.
As Johnson was leaving the parking lot, Trooper Pepper blocked the exit and advised the occupants of the truck he had probable cause to believe they were transporting narcotics. Permission was requested and received from Johnson to search his person and his truck. No contraband was discovered. Written permission was received from the passenger (C.W. Williams) to search the duffle bag.
In searching the duffle bag Trooper Pepper found a bank bag wrapped in white tape. Cutting the tape off, Pepper discovered the lock was closed but had not been zipped completely shut, so that the officer could open the bag. Inside the bank bag was a clear plastic "baggie" wrapped in foil and taped. The "baggie" contained a white powdery substance, later analyzed and determined to be 1 1/2 ounces (42 grams) of cocaine (47%).
While being processed Johnson admitted to ownership of the bank bag, but claimed he had not seen it since a few weeks earlier in Florida. He then produced a key from his key chain that opened the lock on the bag. Johnson was charged with possession of cocaine with intent to distribute.
At the trial, Williams, testifying on behalf of the State, said the defendant had given him the duffle bag and clothes to wear together with a ticket and $10 to go to Florida; that upon arrival at his destination he spent one day at the home of his niece (an acquaintance of defendant) and his niece bought him a bus ticket to Homer; he telephoned Johnson upon arriving in Homer but got no answer and tried again a few minutes later; that while he was dialing again a second time, Johnson drove up; and that defendant's son-in-law told Williams to give the bank bag to defendant.
Trooper Pepper testified that cocaine had a street value of about $125 per gram and that possession of 1 1/2 ounces was inconsistent with personal use. He stated that cocaine was generally packaged in gram quantities of 1/2, 1/4, or 1/8 ounce units.
The District Court erred, as a matter of law, in denying the defendant's Motion to Suppress.
The District Court erred, as a matter of law, in allowing state Trooper Randall Pepper to testify as to a statement made by and/or information received from a confidential reliable informer.
Since the ruling in Assignment of Error Number 6 would effect a ruling in Number 1, Assignment of Error Number 6 will be addressed first.
Defendant argues that permitting Trooper Pepper to testify as to what the "CI" told him constituted hearsay in derogation of La.R.S. 15:434. This assertion is erroneous. The testimony was offered at the motion to suppress, not to prove the truth of the matter asserted, but rather to show the officer's state of mind regarding the reason he went to the scene of the arrest and his good faith in believing he had probable cause to stop the defendant. The eliciting of this information was necessary at the motion to suppress to show that the arrest met the standards of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). State v. Lard, 459 So.2d 1189, 1192 (La.App. 4th Cir.1984), writ denied, 464 So.2d 1376 (1985); State v. Calloway, 324 So.2d 801 (La.1975). This assignment of error is without merit.
In Assignment of Error Number 1, the defendant asserts that the seized cocaine should not have been admitted because the initial stop was not made pursuant to a valid search warrant. As the Louisiana Supreme Court has stated:
"It is well-settled that a search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions." State v. Raheem, 464 So.2d 293, 295 (La.1985).
It proceeded to note that:
"One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to a consent." id., at 297.
There is no question that the bank bag containing the cocaine, and the duffle bag in which it was hidden, were searched only after obtaining the written consent of Williams who had actual possession of the duffle bag. Therefore, the only question is: Did Trooper Pepper have probable cause to stop the defendant? Trooper Pepper announced to the defendant and Williams that he had "probable cause" to stop them. "Probable cause to arrest without a warrant exists when the facts and circumstances within the officer's knowledge, or of which he has reasonably trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime." State v. Ruffin, 448 So.2d 1274, 1277 (La.1984); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).
The standard informant cases for determining probable cause flow from Illinois v. Gates, supra. In Gates, the Supreme Court replaced the mechanical "two-pronged test" of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) with a "totality of the circumstances" test. The Gates court did not denigrate the importance of the two prongs of the test, i.e., reliability of the informant and the basis of his information, but allowed an abundance of one to compensate for lack of the other. Therefore, the question becomes: Did Trooper Pepper have probable cause to stop the defendant and Williams based on the information provided by the "CI"?
First, Officer Pepper testified as to the veracity and reliability of the "CI" by relating how the "CI" had made controlled purchases for Officer Pepper, and had provided reliable information on three prior occasions. In this case, Officer Pepper was told that a black male would be getting off the bus prior to 9:00 A.M. The basis of this information, according to the "CI", was the defendant himself. When Officer Pepper began the surveillance, he observed one black male, who was picked up by the defendant, get off the bus. Not only did Officer Pepper have probable cause to stop the defendant based upon the totality of the circumstances, this information would have been satisfactory under the Aguilar-Spinelli test. This assignment of error lacks merit.
The District Court erred, as a matter of law, in allowing evidence outside the scope of the opening statement.
The District Court erred, as a matter of law, in allowing a statement made by the defendant, without the State of Louisiana having given notice prior to the opening statement of its intent to utilize such statement.
The District Court erred, as a matter of law, in allowing defendant's statement to be introduced into evidence without a proper foundation.
La.C.Cr.P. Art. 766 provides:
The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.
La.C.Cr.P. Art. 767 provides:
The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant.
La.C.Cr.P. Art. 768 provides:
Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state's opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.
La.Cr.Cr.P. Art. 769 provides:
Evidence not fairly within the scope of the opening statement of the state shall not be admitted in evidence.
If the state offers evidence that was inadvertently and in good faith omitted from the opening statement, the court, in its discretion may admit the evidence if it finds that the defendant is not taken by surprise or prejudiced in the preparation of his defense.
Defendant's complaint is that it was error to admit his inculpatory statements because they were not mentioned in the opening argument. He then goes on to claim that it would violate Art. 767 to advert to those statements in opening...
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