State v. Laviolette

• Decision Date: 06 February 1991
• Docket Number: No. C,C
• Citation: 576 So.2d 1000
• Parties: STATE of Louisiana v. Etienne J. LAVIOLETTE. r90-384. 576 So.2d 1000
• Court: Court of Appeal of Louisiana — District of US

Page 1000

576 So.2d 1000

STATE of Louisiana v. Etienne J. LAVIOLETTE.

No. Cr90-384.

576 So.2d 1000

Court of Appeal of Louisiana, Third Circuit.

Feb. 6, 1991.

On Rehearing March 26, 1991.

Writ Denied June 14, 1991.

Michael D. Skinner, Goode, Skinner, Hawkland & Shullaw, Lafayette, for defendant-appellant.

J. Phil Haney, Asst. Dist. Atty., New Iberia, for plaintiff-appellee.

Before GUIDRY, STOKER and DOUCET, JJ.

GUIDRY, Judge.

On December 4, 1989, defendant, Etienne J. Laviolette, was tried and convicted by a twelve person jury of possession with intent to distribute a controlled dangerous substance, marijuana, a violation of La.R.S. 40:966(A)(1). On January 18, 1990, defendant was sentenced to serve eleven years at hard labor with the Department of Corrections and to pay a fine of $15,000.00 plus all costs of court or in default thereof, to serve an additional two years in the parish jail. Defendant appeals his conviction and sentence arguing the following six assignments of error:

1. The trial court erred in refusing to grant defendant's motion to suppress.

2. The trial court erred in accepting a state trooper as an expert, despite his lack of knowledge and expertise sufficient to allow him to be qualified as an expert, which resulted in prejudice to the defendant.

3. The trial court erred in refusing to grant defendant's motion for post verdict judgment of acquittal.

4. The trial court erred in imposing an excessive fine in the amount of $15,000.00 in lieu of which defendant is to serve two years in the parish jail and imposing an excessive term of imprisonment of eleven years at hard labor.

5. The trial court erred in allowing evidence of other crimes to be introduced which resulted in prejudice to defendant.

6. The trial court erred in that the law and the evidence do not justify a verdict of guilty of possession of marijuana with intent to distribute.

Inasmuch as we find merit in defendant's first assignment of error and reverse his conviction and the sentence imposed, we will not address the other five assignments of error.

FACTS

At approximately 3:15 a.m. February 1, 1989, two St. Martinville City Police officers, Judy Huval and Glenn Neveu, stopped the defendant, who was driving a 1988 Pontiac, for suspicion of operating a vehicle while intoxicated, a violation of La.R.S. 14:98. After repeated requests to do so, the driver exited his vehicle and unsteadily made his way back to the police car. While Officer Huval administered a field sobriety test, Officer Neveu proceeded to check the defendant's automobile for passengers. Also, defendant had left the motor running and the officer wanted to turn the engine off. Officer Neveu noticed a suspicious bag, in plain view, inside the car and summoned his partner. Officer Huval testified that the window on the driver's side was down and she and her partner could see a large, clear plastic bag containing brownish-green vegetable matter, which resembled marijuana, protruding from under the driver's seat.

At that point, defendant was read his rights, placed under arrest for DWI and possession of marijuana. He was then placed in the back of the police car. Backup was summoned and Officers Huval and Neveu searched defendant's car, removing the bag of vegetable matter, several open bottles of liquor and a bank envelope containing an unspecified amount of money. The evidence was placed in a cardboard box and transported to the St. Martinville City Police station where it was turned over to Detective Lercy Melancon.

Officer Barras, who answered the call for backup, testified that upon arrival at the scene, he too observed the bag of green plant matter in plain view in defendant's car. He further stated that he was present during the search of the car, he stayed with the car until it was picked up by Champ's Wrecker Service and he instructed Mr. Champagne not to let anyone touch the car until instructed otherwise.

Officer Huval testified that upon arrival at the police station, defendant offered the officers money to avoid being charged with possession of marijuana. She also stated that the defendant suggested to the officers that they could keep the marijuana if they did not file charges.

At the police station, Officer Barras heard defendant voluntarily say that he had purchased about a pound of marijuana earlier that day and that the officers could have the marijuana and the money if they just charged him with DWI. Defendant further told the officers that the reason he had purchased so much marijuana was because he was tired of buying $30.00 bags.

Detective Melancon, after again advising defendant of his rights, asked defendant if the marijuana was his and if so, where he bought it. Defendant answered saying he had purchased the pound of marijuana for $800.00 in Houston because he was tired of buying $30.00 bags, and that he bought it for his own personal use. After hearing that, Melancon left the defendant to begin preparing his report. He returned a short while later to hear defendant say that if the officers dropped the possession of marijuana charges, they could keep the marijuana and the money.

Detective Melancon testified that the following morning he searched defendant's car, which had been secured at a wrecking yard after defendant's arrest. During this warrantless search, which he admitted was to find additional evidence, he opened the console which was secured only by an unlocked button and found an ounce/gram scale which could be used to measure marijuana, "roach clips" and several small marijuana cigarette butts commonly known as "roaches".

A forensic chemist who tested the material in the bag testified that the bag contained 12.7 ounces of marijuana. The chemist testified that there was enough marijuana to roll approximately 1400 average size cigarettes.

Louisiana State Trooper Walter Legendre, testifying as an expert in the field of packaging, sales and distribution of marijuana, stated that in his fourteen years in law enforcement, he had never known of anyone to purchase a pound of marijuana strictly for personal use. Furthermore, he testified that the package seized by the police was the size package which would normally contain a pound of marijuana. Trooper Legendre stated that marijuana could be sold by "finger bags" or by weight, after being weighed on a scale like the one seized by the police.

Mrs. Laviolette, defendant's wife, testified that she and defendant were at their home at approximately 2:30 a.m. that night when she saw the bag of marijuana. An argument ensued and Mrs. Laviolette asked defendant to leave the house and dispose of the marijuana. He agreed. She further testified that she had never known or seen defendant use or sell marijuana. On cross-examination by the State, she admitted that she lied to the police when she stated the marijuana was hers to cover up for her husband and that she could not say definitely that her husband did not sell marijuana.

ASSIGNMENT OF ERROR NO. 1

Defendant argues, in this assignment of error, that the trial court erred in denying his motion to suppress. Specifically, he argues that the warrantless search by Detective Melancon of his car in the wrecker yard after he was arrested was unlawful since it does not fall under any recognized exception to the warrant requirement. As the search and seizure of the defendant's vehicle was conducted without a warrant, the State bears the burden of affirmatively establishing that the search was justified under a recognized exception to the warrant requirement of the Fourth Amendment and La. Const. Art. I, Sec. 5 (1974). State v. Sims, 426 So.2d 148 (La.1983).

A true inventory search has been held to be a valid exception to the warrant requirement. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); State v. Jewell, 338 So.2d 633 (La.1976). To fall within the inventory search exception, the State must prove that the impoundment of the vehicle was necessary and that the inventory of the vehicle's contents was necessary and reasonable in its scope. State v. Sims, supra, at p. 153, citing State v. Crosby, 403 So.2d 1217 (La.1981), and State v. Jewell, supra. To ensure that the inventory search is not merely a subterfuge to circumvent the warrant requirements of the federal and state constitutions, several factors are considered to be significant in determining whether a true inventory search has occurred: (1) the vehicle could not have remained safely at or near the place it was stopped; (2) the search was not conducted in the field; (3) the tow truck was called before the search commenced; (4) formal impoundment procedures were followed; (5) the vehicle operator was asked if he consented to a search, if the car contained valuables, or if he would consent to the agency's failure to afford him the protection of an inventory search; and, (6) arrangements were made for someone designated by the operator to take possession or protective custody of the vehicle for him. State v. Joyner, 445 So.2d 179 (La.App. 3rd Cir.1984), writ denied, 447 So.2d 1068 (La.1984), citing State v. Sims, supra.

Absent an inventory situation, in order for a warrantless search of a vehicle to be constitutional, two conditions must exist: (1) there must be probable cause to believe that the vehicle contains contraband or evidence of a crime, and (2) there must be exigent circumstances requiring an immediate search. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Chaney, 423 So.2d 1092 (La.1983). The Louisiana Supreme Court in State v. Guzman, 362 So.2d 744 (La.1978), cert. denied, 443 U.S. 912, 99 S.Ct. 3103, 61 L.Ed.2d 876 (1979), defined "exigent circumstances" as:

"[T]he 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...