State v. Morris

• Decision Date: 10 September 2003
• Docket Number: No. 2003-0269.,2003-0269.
• Citation: 854 So.2d 989
• Parties: STATE of Louisiana v. Charles E. MORRIS, Glenivan Cottle, and Donell Badgett, Jr.
• Court: Court of Appeal of Louisiana — District of US

854 So.2d 989

STATE of Louisiana v. Charles E. MORRIS, Glenivan Cottle, and Donell Badgett, Jr.

No. 2003-0269.

Court of Appeal of Louisiana, Third Circuit.

September 10, 2003.

Writ Denied October 15, 2003.

Hon. J. Phillip Haney, District Attorney, New Iberia, LA, for Plaintiff/Applicant State of Louisiana.

Harold Dewey Register Jr., Lafayette, LA, for Defendant/Respondent Glenivan Cottle.

Thomas M. Calogero, Regan Manasseh & Boshea, New Orleans, LA, for Defendant/Respondent Donell Badgett, Jr.

Anthony Jude Saleme, Jr., Asst. District Attorney, St. Martin Parish Courthouse, St. Martinville, LA, for Plaintiff/Applicant State of Louisiana.

Lynden James Burton, Pecantte-Burton & Burton, Jeanerette, LA, for Defendant/Respondent Charles E. Morris.

Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.

SAUNDERS, Judge.

The Defendants, Charles E. Morris, Glenivan G. Cottle, and Donell L. Badgett, Jr., are charged with possession of cocaine in violation of La.R.S. 40:967(F)(1)(c). Morris was also charged with following too closely in violation of La.R.S. 32:81(A). Badgett was also charged with improper lane usage, in violation of La.R.S. 32:79. It appears from the record before this court that the two traffic charges are charged in the same lower court docket number as the drug charges. The Defendants filed motions to suppress that were granted by the trial court after a hearing on May 9, 2002. It is from this ruling the State timely filed this pretrial writ application. No information on trial date was provided.

On April 7, 2003, this court granted this writ application to the May 8, 2003 docket for consideration on the merits.

FACTS:

At the hearing on the motions, Louisiana State Police Trooper Lanny Bergeron testified that he stopped Defendant Morris's vehicle on October 9, 2000, at approximately 12:47 am. Trooper Bergeron stated that he was parked on the shoulder of Interstate 10, near mile post 110 in St. Martin Parish, when he saw a blue Crown Victoria following less than a car length behind a green Ford Taurus. He testified that he intended to stop the blue Crown Victoria for the traffic offense, but did not after observing fellow State Trooper John Trahan traveling directly behind the Crown Victoria and requesting a registration check on the vehicle. Trooper Bergeron soon discovered that, while Trooper Trahan had called for a registration check on the Crown Victoria, he had actually stopped the red Suburban that Trooper Bergeron had noticed earlier traveling some distance behind the Crown Victoria.

Trooper Trahan testified that, on October 9, 2000, at 12:47 am, he observed a Crown Victoria following too closely behind a Ford Taurus. While approaching the Crown Victoria with intent to stop the vehicle for the observed traffic offense, Trooper Trahan observed a red Suburban committing the traffic offense of improper lane usage. While calling for the registration check on the Crown Victoria the Suburban continued to commit improper lane usage traffic offenses. Trooper Trahan indicated that the traffic offenses committed by the Suburban appeared to be deliberate. In light of the continuing, and apparently deliberate, traffic offenses committed by the Suburban, Trooper Trahan testified that he chose to stop the Suburban because it appeared to pose more of a danger to other motorists than the Crown Victoria.

After seeing Trooper Trahan behind the Crown Victoria, Trooper Bergeron turned around and headed in the opposite direction. Shortly thereafter he heard over the radio that his partner had run a registration check on the Crown Victoria and then stopped a Suburban with a Pennsylvania license tag. He testified that he knew at that time that Trooper Trahan had not stopped the Crown Victoria. Trooper Bergeron stated that he also heard on his radio that the Crown Victoria registration check revealed the owner of that vehicle was Glenivan Cottle. Then, Trooper Trahan stated on the radio that Cottle was in the Suburban that he had stopped.

Trooper Bergeron stated that he is familiar with the narcotics traffickers' practice of having a "tail" vehicle traveling along with the vehicle carrying the narcotics, referred to as the "load" vehicle, for the purpose of drawing attention of law enforcement away from the "load" vehicle. This is done by having the "tail" vehicle commit an infraction with the intention of having the law enforcement agent stop the "tail" vehicle so that the narcotics in the "load" vehicle may proceed towards its destination undisturbed. He also noted that, typically, when vehicles are traveling together, the other vehicle will also pull over if one is stopped by police.

When Trooper Bergeron came to realize that Trooper Trahan had not stopped the Crown Victoria, and received word that the owner of the Crown Victoria was a passenger in the Suburban stopped by Trooper Trahan and that had appeared to be traveling with the Crown Victoria, he took action to locate the Crown Victoria. He eventually located and stopped the blue Crown Victoria at mile post 138 in Iberville Parish. The driver of the Crown Victoria was identified as Defendant Morris. Trooper Bergeron asked him the whereabouts of the owner of the vehicle. Defendant Morris told him that he was a rapper and he was traveling from Houston to New Orleans to visit a friend and drop off the car. He said the owner of the car was in New Orleans. Trooper Bergeron stated that he ran a criminal history check and discovered that Defendant Morris had an arrest history, and that the owner of the vehicle, Defendant Cottle, had an open case with DEA. Trooper Bergeron asked for written consent to search the vehicle, and Defendant Morris signed the form. While searching, the officer noticed the fuel tank had recently been removed and also thought he found a false compartment in the bottom of the trunk. Defendant Morris was handcuffed and Mirandized. Trooper Bergeron testified that the Defendant was not free to leave at this point even though no illegal drugs had been located. After the canine drug dog alerted, officers searched the compartment and found packages of cocaine.

The driver of the Suburban was Defendant Badgett. Trooper Trahan testified that the Defendant appeared extremely nervous and told him that he was weaving on the road because he was tired. The driver told the trooper that he only knew his passenger's first name and had only known him for a week. The passenger gave his name and the trooper recognized it as the owner of the Crown Victoria. Trooper Trahan contacted Troopers Bergeron and Bija, and Iberville Parish Sheriff's Office to be on the lookout for the Crown Victoria. After questioning the driver and passenger of the Suburban, Trooper Trahan ran a criminal history check on both men and found they had prior drug arrests. He then prepared a written consent to search form which the driver, Defendant Badgett, signed. A search of the vehicle revealed nothing illegal.

Trooper Bergeron advised Trooper Trahan that he stopped the Crown Victoria and that its driver, Defendant Morris, was the owner of the Suburban. Bergeron further advised Trahan that he could arrest Badgett and Cottle because a compartment containing contraband was located in the Crown Victoria. Trooper Trahan testified he arrested Badgett and Cottle because "they were traveling together; the vehicles was not registered to them. The owner of the Crown Vic was the passenger in the vehicle, and at 0440 something in the morning, it is not likely that two cars will be traveling together and the people do not know each other." We note that Trooper Trahan incorrectly referred to the time of the stop of the Suburban as 4:40 am, when he earlier testified the stop was at 12:47, and this time was corroborated by Trooper Bergeron's testimony.

ASSIGNMENT OF ERROR:

The State contends the trial court erred in granting Defendants' motions to suppress. It argues that the trooper's stop of the Crown Victoria, driven by Defendant Morris, was based on a traffic violation and reasonable suspicion of criminal activity.

TRAFFIC VIOLATION

We first address whether the traffic violation was sufficient, in and of itself, to justify the stop of the Crown Victoria.

The State argues that both Trooper Trahan and Trooper Bergeron witnessed the driver of the Crown Victoria committing a traffic violation, following too closely, therefore the subsequent stop of the vehicle was legal. The State cites State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053. In Waters, the Louisiana Supreme Court found that the officer who stopped the Defendant's vehicle had a reasonable basis for the stop even though the vehicle only touched the right-hand fog line of the roadway, but did not cross the line. The officer had probable cause to believe that a traffic violation had occurred. While discussing the reasonableness of the stop, the court stated:

As a general matter, "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769,1772, 135 L.Ed.2d 89 (1996) (citations omitted). The standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer.

Whren, 517 U.S. at 813,116 S.Ct. at 1774 ("Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."). Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants. See, e.g., State v. Richards, 97-1182, p. 2 (La.App. 5th Cir.4/15/98), 713 So.2d 514, 516 (failure to come to a complete stop at a stop sign); State v. Dixon, 30,495, p. 1 (La.App.2d Cir.2/25/98), 708 So.2d 506, 507 (traveling less than a car

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