State v. Mitchell

• Decision Date: 03 March 2004
• Docket Number: No. 37,916-KA.,37,916-KA.
• Citation: 869 So.2d 276
• Parties: STATE of Louisiana, Appellee, v. Nathaniel MITCHELL, Appellant.
• Court: Court of Appeal of Louisiana — District of US

869 So.2d 276

STATE of Louisiana, Appellee, v. Nathaniel MITCHELL, Appellant.

No. 37,916-KA.

Court of Appeal of Louisiana, Second Circuit.

March 3, 2004.

Louisiana Appellate Project by Margaret S. Sollars, for Appellant.

John Schuyler Marvin, District Attorney, John Michael Lawrence, C. Sherburne Sentell III, Assistant District Attorneys, for Appellee.

Before STEWART, PEATROSS and DREW, JJ.

DREW, J.

Nathaniel Mitchell was tried by a jury and convicted of possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and two counts of conspiracy to commit the aforementioned crimes.

The defendant now appeals. We affirm the two convictions for possession of cocaine and marijuana with intent to distribute, reverse the two criminal conspiracy convictions, and remand for resentencing.

FACTS

On June 26, 2000, around 9:00 p.m., the defendant was driving east on Interstate 20 in Webster Parish, in his red and black customized 1993 GMC van with Arizona license plates. The defendant was heading to Georgia to attend his brother's funeral, accompanied by three passengers: Adrienne Peevy, a friend; Louella Mitchell, the defendant's daughter; and the defendant's two-year-old grandchild.

The witnesses gave conflicting testimony. The defendant testified that:

• While driving, he passed (on the side of the road) four police units, apparently engaged in a traffic stop.

• He was traveling approximately 70 miles per hour when he attempted to pass a truck located in the right lane.

• He began to move into the left lane, but the truck driver suddenly moved into the left lane as well, causing Mitchell to run off the shoulder of the road.

• After the truck passed, he again drove back onto the roadway.

• A Webster Parish deputy got behind him and subsequently pulled him over.

Webster Parish Deputy John Morton testified that:

• He was driving in the inside lane, en route to assist another deputy at another traffic stop when he saw the defendant's vehicle quickly pull in front of him.

• The defendant then changed lanes back into his original lane of travel.

• No turn signal was given at either lane change.

• He concluded that the defendant had committed the traffic violation of improper lane usage, and suspected he might be impaired.

• He then radioed the officer he was en route to assist that he had encountered a possibly intoxicated subject whom he was going to check out.

• He followed the defendant for another two to three hundred yards before activating his lights to stop the vehicle.

The defendant further testified that:

• After he got out of his van, Deputy Morton informed him that he illegally changed lanes.

• He (the defendant) had his right signal on before changing lanes.

• Another officer pulled over to assist Deputy Morton.

• Deputy Morton told the defendant, "We need to look inside your van."

• He (the defendant) told Deputy Morton that both Ms. Peevy and Miss Mitchell were partially unclothed because of the heat in the van.

• He further advised Deputy Morton that if he would allow him to tell the women to get dressed, he would allow Deputy Morton to look in the van.

• Deputy Morton refused to allow the defendant to go back to the van.

• When asked if weapons were in the van, the defendant replied, "Yes," advising Deputy Morton of a pistol along the driver's seat and another gun in the back.

• About this time, another police unit pulled up, carrying two more officers, making a total of four officers at the traffic stop location.

• During the traffic stop, Deputy Morton told him that they needed to search his van and stated, "Now we can do it the easy way or we can do it the hard way."

• Deputy Morton walked off to speak to the other officers and came back with a clipboard in his hand and handed it to one of the other officers and told him to "get him to sign it."

• When Deputy Morton went to retrieve the passengers from the van, there was audible "fussing" between Deputy Morton and Ms. Peevy.

• Deputy Morton called Peevy a "little n... r bitch," and he was pushing her from the right side of the van toward the back.

• He (the defendant) felt intimidated and threatened, so he signed the consent form to allow the officers to search his van.

• Had it not been for the number of officers on the scene and Deputy Morton's name-calling and pushing of Ms. Peevy, he would not have signed the consent form.

Deputy Morton's testimony differs greatly from the defendant's:

• He pulled the defendant over for improper lane usage and issued a citation for this violation.

• He never saw the defendant's van get run off the road by an 18-wheeler.

• The defendant initially appeared very nervous and then, as their conversation continued, the defendant began sweating excessively from his brow.

• The defendant stuttered at times and repeatedly kept looking back over his shoulder at his van.

• The defendant never mentioned anything to him about the women in the van being partially undressed or the air conditioner in his van not working properly.

• After he ran the defendant's license and criminal history, he learned of several weapons charges against the defendant. At the motion to suppress hearing, it was determined that these charges actually belonged to a different Nathaniel Mitchell.

• He read the defendant his rights prior to him signing the consent to search form.

• He went over the form with the defendant prior to the defendant signing the form, and that he did not coerce the defendant in any way to sign the consent form.

• He never used a racial slur against Ms. Peevy.

• The defendant asked what would happen if he didn't sign, and he (Deputy Morton) informed the defendant that if he didn't want to sign the form, then a K-9 officer would be called to walk around the defendant's vehicle.

• At that point, the defendant decided that he would sign the consent form.

A police search of the van recovered:

• One fanny pack;

• Thirty-six bags of suspected crack cocaine (three more bags were subsequently found in the van during a later search);

• Six Baggies of suspected marijuana;

• Six suspected marijuana blunts in a Royal Blunt package;

• One Thousand One Hundred Thirty-Five and No/100 Dollars ($1,135.00) in currency;

• One Intretec 9-millimeter Luger;

• One full clip containing 31 rounds of 9-millimeter ammunition;

• One .40 caliber Ruger;

• Two clips containing 20 rounds of .40 caliber ammunition; and

• Three bags of coffee beans.

The defendant was arrested and charged with possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and two counts of conspiracy to commit the aforementioned crimes. After a trial by jury, the defendant was found guilty as charged on all four counts. The trial court sentenced him to serve 15 years at hard labor for the possession of cocaine with intent, with the first two years to be served without the benefit of parole, probation, or suspension of sentence; and five years for conspiracy to commit possession of cocaine with intent, to run concurrently with each other. The court further sentenced the defendant to serve ten years at hard labor for his conviction of possession of marijuana with intent, and five years for conspiracy to commit possession of marijuana with intent. These latter two sentences were also ordered to be served concurrently with each other but consecutive to the two previously-imposed sentences, making a total of a 25-year hard labor sentence. The defendant appeals his conviction and sentence.

DISCUSSION

I. Validity of Stop, Search, and Seizure

The defendant argues that:

• The stop was based on a mere hunch, which is never enough for an officer to make a stop of a motorist.

• The stop was pretextual.

• The search was based solely on the nervous appearance of the defendant, and mere nervousness alone is not enough reason to allow an officer to search.

• The trial court erred in finding that no coercion was utilized to gain his consent to search.

The defendant relies heavily upon the testimony of Ms. Peevy, who stated that Deputy Morton called her a racial slur and snatched her out of the van, and the alleged fact that his right signal light was in proper working order and was still blinking at the time of the traffic stop. The defendant asserts that:

• Nothing occurred to legally justify extending his detainment past the issuance of the citation.

• No legal justification existed for searching the van.

• No other crime was witnessed other than the minor traffic matter.

• A generalized hunch or mere suspicion that a person is involved in criminal activity is not sufficient to detain an individual and pursue an investigation.

The state argues that:

• The stop of an automobile is reasonable when the police have probable cause to believe a traffic violation has occurred.

• Both the traffic stop and subsequent seizure of evidence from defendant's van are legally justified.

• A search conducted with a subject's consent is a specifically established exception to both the warrant and probable cause requirements.

• The defendant's consent was voluntarily and freely given.

To assess the constitutionality of allegedly pretextual searches, the United States Fifth Circuit adopted an objective test in U.S. v. Causey, 834 F.2d 1179, 1184 (5th Cir.1987): "[S]o long as police do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry." See, also, Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), and State v. McVan, 32,434 (La.App.2d Cir.3/11/99) 744 So.2d 641.

Since 1968, the requirement for making a stop on less than probable cause has been that the officer must be able to articulate factors leading to a favorable conclusion as to the existence of reasonable suspicion of criminal activity. See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Several recent cases speak of traffic stops...