State v. Pena

• Decision Date: 30 July 2008
• Docket Number: No. 43,321-KA.,43,321-KA.
• Citation: 988 So.2d 841
• Parties: STATE of Louisiana, Appellee v. Antonio PENA, Jr., Appellant.
• Court: Court of Appeal of Louisiana — District of US

988 So.2d 841

STATE of Louisiana, Appellee v. Antonio PENA, Jr., Appellant.

No. 43,321-KA.

Court of Appeal of Louisiana, Second Circuit.

July 30, 2008.

Joseph C. Miciotto, for Appellant.

J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.

Before BROWN, WILLIAMS and GASKINS, JJ.

WILLIAMS, J.

The defendant, Antonio Pena, Jr., was charged by bill of information with possession with intent to distribute a Schedule I controlled dangerous substance ("CDS"), marijuana, in a quantity of over 60 pounds, in violation of LSA-R.S. 40:966(F)(1) and conspiracy to distribute a Schedule I CDS, marijuana, in violation of LSA-R.S. 40:979. The defendant entered a plea of guilty to possession of marijuana in a quantity of more than 60 pounds, reserving the right to appeal certain issues pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced to serve ten years in prison at hard labor without benefit of probation, parole or suspension of sentence. For the reasons set forth herein, we affirm the defendant's conviction, amend the defendant's sentence to order that the defendant shall serve ten years at hard labor, with five years of the sentence to be served without benefit of probation or parole. We affirm the defendant's sentence as amended and remand this matter to the trial court for correction of the minutes to reflect that the defendant will be eligible for probation or parole after serving five years.

FACTS

On May 26, 2006, at approximately 2:30 p.m., the defendant was driving east on Interstate 20 in Bossier Parish in a green Lincoln LS with a Texas license plate. Louisiana State Trooper Shane Sears effected a stop of the vehicle, suspecting that the window tint was illegal, the license plate was improperly displayed and the defendant was not wearing a seatbelt. Upon coming into contact with the defendant, Trooper Sears discovered that the defendant did not have a driver's license and the vehicle was not registered. The trooper also observed that the defendant gave inconsistent answers to questions posed. While Trooper Sears was writing the defendant citations for the failure to have a driver's license and driving an unregistered vehicle, he learned that the defendant had been convicted of felony possession of marijuana and a weapons charge in the state of Texas. Based on those circumstances, the trooper requested consent to search the vehicle. The defendant refused to give consent. Another trooper, James Nash, arrived on the scene and remained with the defendant while Trooper Sears went to his unit to retrieve a dog from the K-9 unit. The K-9 performed a free-air sniff and alerted the troopers to the trunk of the vehicle. Trooper Nash advised the defendant of his Miranda rights, and Trooper Sears conducted a search of the trunk. The search revealed two cardboard boxes containing 15 plastic-wrapped bundles of a substance suspected to be marijuana. It was later determined that the boxes contained 72 pounds of marijuana.

The defendant was charged with possession of marijuana (over 60 pounds) with intent to distribute and conspiracy to distribute a controlled dangerous substance. The defendant filed a motion to suppress "all evidence seized as the result of the arrest of the defendant and the search of the vehicle driven by the defendant...." In lieu of a hearing, the state and the defendant agreed to submit joint exhibits which included photographs of the defendant's vehicle, police reports and arrest records. After reviewing the evidence submitted, the trial court denied the motion to suppress.

The defendant pled guilty to possession of marijuana in a quantity of more than 60 pounds, reserving his right to appeal the court's ruling on the motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976). In exchange for the guilty plea, the state agreed to nolle prosequi the conspiracy charge. The defendant was sentenced to serve ten years in prison at hard labor without benefit of probation, parole or suspension of sentence. The defendant filed a timely motion to reconsider sentence which was denied. This appeal ensued.

DISCUSSION

The defendant contends the trial court erred in denying his motion to suppress. The defendant argues that the reasons given to justify the stop of his vehicle were pretexts, stating that he was not cited for any of the alleged reasons for the stop. He alleges that the trooper only cited him for driving without a driver's license and driving an unregistered vehicle, violations discovered after the vehicle was stopped.

The state bears the burden of proof when a defendant files a motion to suppress evidence obtained without a warrant. LSA-C.Cr.P. art. 703(D). The entire record is reviewable for determining the correctness of a ruling on a motion to suppress. State v. Young, 39,546 (La.App. 2d Cir.3/2/05), 895 So.2d 753. A trial court's denial of a motion to suppress is afforded great weight and will not be set aside unless a preponderance of the evidence clearly favors suppression. State v. White, 39,681 (La.App. 2d Cir.5/11/05), 903 So.2d 580; State v. Normandin, 32,927 (La.App. 2d Cir.12/22/99), 750 So.2d 321, writ denied, 2000-0202 (La.9/29/00), 769 So.2d 550.

Initial stop

The authority and limits of the Fourth Amendment apply to investigative stops of vehicles. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The stopping of a vehicle and the detention of its occupants is a seizure within the meaning of the Fourth Amendment. U.S. v. Shabazz, 993 F.2d 431 (5th Cir. 1993). The standard for evaluating a challenge to a routine warrantless stop for violating traffic laws is the two-step formulation articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Sims, 40,300 (La.App. 2d Cir.10/26/05), 914 So.2d 594. The court must determine "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." U.S. v. Shabazz, 993 F.2d at 435, quoting Terry v. Ohio, 392 U.S. at 20, 88 S.Ct. 1868.

For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred or is about to occur, before stopping the vehicle. United States v. Sharpe, supra; State v. Sims, supra. When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048. The determination of reasonable suspicion for an investigatory stop, or probable cause for arrest, does not rest on the officer's subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of the challenged action. State v. Landry, 98-0188 (La.1/20/99), 729 So.2d 1019; State v. Arnold, 34,194 (La.App. 2d Cir.12/6/00), 779 So.2d 840. When an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable. Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

In this case, the stop of the vehicle being driven by the defendant was based upon Trooper Sears' observation that the vehicle's license plate was improperly displayed, the window tint was too dark and the defendant was not wearing a seat belt. The photographs introduced into evidence revealed that although the numbers and letters on the license plate were clearly visible, the top and bottom portions of the plate were partially obscured by a license plate frame.¹ The photographs also established that all of the windows on the vehicle were tinted. Although the degree of the window tint was not established, it is clear from the photographs that the front windows were covered in a light tint, making it possible to see inside of the vehicle. However, the remaining windows were covered in a very dark tint, which significantly reduced the light transmission of the windows, making it very difficult to see inside of the vehicle.² As stated above, although the front windows of the vehicle were tinted, the tint was light enough for the officer to see inside of the vehicle to observe whether or not the defendant was wearing a seatbelt. A driver's failure to wear a seat belt constitutes reasonable cause for a stop. State v. Triplet, 42,357 (La.App. 2d Cir.8/15/07), 962 So.2d 506; State v. Jackson, 2004-728 (La.App. 5th Cir.12/14/04), 892 So.2d 71, writ denied, 2005-548 (La.1/9/06), 918 So.2d 1033.³

The defendant introduced no evidence that Trooper Sears did not have reasonable suspicion that a traffic violation had occurred. The defendant's contention that he was stopped because he is Hispanic was not supported by the record. The record contained photographs of the defendant which show that his ethnicity was not readily recognizable.

After reviewing the record in its entirety, we conclude that at the inception of the stop, Trooper Sears had reasonable suspicion that a traffic violation had occurred. As stated above, our inspection of the photographs introduced into evidence revealed that the license plate was partially obscured and most of the windows on the vehicle were tinted in a very dark tint. Even if the trooper had later determined that the degree of tint on the windows was acceptable, he was justified in stopping the vehicle to further investigate a possible infraction. See, State v. Wyatt, 99-2221 (La.App. 4th Cir.9/27/00), 775 So.2d 481. We find no error in the trial court's ruling that the defendant's Fourth Amendment rights were not violated by the initial stop of the vehicle.

Detention/Search

The defendant contends...