State v. Pham

• Court: Court of Appeal of Louisiana
• Writing for the Court: William H. Byrnes, Iii
• Citation: State v. Pham, 839 So.2d 214 (La. App. 2003)
• Decision Date: 22 January 2003
• Docket Number: No. 2001-KA-2199.,2001-KA-2199.
• Parties: STATE of Louisiana v. Joseph H. PHAM.

839 So.2d 214

STATE of Louisiana v. Joseph H. PHAM.

No. 2001-KA-2199.

Court of Appeal of Louisiana, Fourth Circuit.

January 22, 2003.

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Harry F. Connick, District Attorney, Scott Peebles, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.

Robert Jenkins, Jr., New Orleans, LA, for Defendant/Appellant.

(Court composed of Chief Judge WILLIAM H. BYRNES III, Judge DENNIS R. BAGNERIS, SR., and Judge DAVID S. GORBATY).

WILLIAM H. BYRNES, III, Chief Judge.

The defendant, Joseph H. Pham, appeals his conviction and sentence for possession of cocaine. We affirm.

Procedural History

On May 9, 2000, Joseph Pham was charged by bill of information with one count of possession of more than two hundred grams but less than four hundred grams of cocaine in violation of La. R.S. 40:967. Pham pleaded not guilty at his May 17, 2000, arraignment. After a hearing on June 9, 2000, and June 28, 2000, the trial court denied Pham's motion to suppress the evidence. After trial on March 12, 2001, and March 14, 2001, a twelve-member jury found Pham guilty as charged. On March 29, 2001, the trial court denied Pham's motion for new trial. The trial court ordered a pre-sentence investigation, and on August 17, 2001, the trial court sentenced Pham to twenty-five years in the Department of Corrections. The trial court also denied Pham's oral motion to reconsider his sentence and granted his motion for appeal.

Facts

On June 29, 2000, Officer Joseph Williams, of the New Orleans Police Department, testified at the motion to suppress hearing that he received information from a confidential informant that a large quantity of cocaine had arrived from Houston, Texas into the New Orleans area. The drugs were first taken to a location in Avondale, Louisiana and then disbursed to other locations including New Orleans East. The informant stated that one of the New Orleans East locations was 4830 Treves Street. The informant further stated that at that location the police would find an Asian woman named Tu Wit [Tuyet Doung], who was involved in the dealing or distribution of drugs. The informant communicated that the information was based on personal observation of drugs at the Treves Street location.

Detectives Nicole Gouch and Eugene Landry conducted a surveillance of the Treves Street location to verify the informant's information. Officer Williams testified that on December 7, 1999, the detectives observed a brown Lexus and a red Acura Integra arrive at the Treves Street location. Two Asian males were driving the vehicles. An Asian woman, later identified as Tu Wit [Tuyet Doung], greeted the males. While the males were at the Treves Street location, Officer Williams testified that he received further information from his informant that a delivery would be made from the Treves location to the area of a church at Dwyer and Willowbrook Roads. The detectives observed the males exit the Treves Street location, and Pham entered the Lexus carrying a box. Pham then went to the church location where he parked next to a white Oldsmobile, also being driven by an Asian male. The two vehicles went to 5103 Lemans Street, a location known for drug activity. Pham and the other Asian male exited their vehicles and entered the Lemans address.

The detectives observed Pham still carrying the box when he exited the Lemans location. Officer Williams testified that the informant told him that Pham would be carrying cocaine in the box, and that Pham would be making deliveries of the drugs concealed in the box. The detectives notified Detectives Christian Hart and Jake Schnapp that Pham was in the process of making deliveries of the drugs contained in the box.

Detective Hart testified that they stopped Pham's vehicle at Lemans and Dwyer Road. Detective Hart further testified that as he approached the driver's side of the vehicle, he saw Pham attempt to conceal the box in a large pocket on his sweatshirt. Detective Hart testified that Pham was removed from his vehicle, the detective removed the box from Pham's pocket, and Pham was handcuffed. Detective Hart opened the box and it contained a white powder substance that appeared to be cocaine. Pham was advised of his rights and arrested. Detective Hart also confiscated four hundred thirty-two dollars and a cell phone.

Errors Patent

A review of the record revealed no errors patent.

Standard of Review of a Motion to Suppress

The trial court is vested with great discretion when ruling on a motion to suppress. State v. Oliver, 99-1585, p. 4 (La. App. 4 Cir. 9/22/99), 752 So.2d 911, 914. The appellate court reviews the district court's findings of fact on a motion to suppress under a clearly erroneous standard, and will review the district court's ultimate determination of Fourth Amendment reasonableness de novo. U.S. v. Seals, 987 F.2d 1102 (5 Cir.1993), cert. denied, 510 U.S. 853, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993). On mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo. United States v. O'Keefe, 128 F.3d 885 (5 Cir. 1997), cert. denied, 523 U.S. 1078, 118 S.Ct. 1525, 140 L.Ed.2d 676 (1998). An appellate court reviews the district court's determinations of reasonable suspicion and probable cause de novo. U.S. v. Green, 111 F.3d 515 (7 Cir.1997), cert. denied sub nom. Green v. U.S., 522 U.S. 973, 118 S.Ct. 427, 139 L.Ed.2d 328 (1997). Where the facts are not in dispute, the reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts. Maryland Cas. Co. v. Dixie Ins. Co., 622 So.2d 698 (La.App. 1 Cir.1993), writ denied 629 So.2d 1138 (La.1993). In reviewing a trial court's ruling on a motion to suppress, an appellate court is not limited to evidence from the motion hearing. It may also consider the evidence presented at trial. State v. Nogess, 98-0670, p. 1 (La.App. 4 Cir. 3/3/99), 729 So.2d 132, 137.

Reasonable Suspicion for an Investigatory Stop

A police officer may engage anyone in conversation, even without reasonable grounds to believe they have committed a crime. Goins v. Wal-mart, 2001-1136 (La.11/29/01), 800 So.2d 783; State v. Duplessis, 391 So.2d 1116, 1117 (La.1980). In the present case, the officers stopped Pham's vehicle.

La.C.Cr.P. art. 215.1 provides in part:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and demand of him his name, address, and an explanation of his actions.

In State v. Anderson, 96-0810, p. 2 (La. App. 4 Cir. 5/21/97), 696 So.2d 105, 106, this Court noted:

A police officer has the right to stop a person and investigate conduct when he has a reasonable suspicion that the person is, has been, or is about to be engaged in criminal conduct .. . . Reasonable suspicion for an investigatory stop is something less than probable cause; and, it must be determined under the facts of each case whether the officer had sufficient articulable knowledge of particular facts and circumstances to justify an infringement upon an individual's right to be free from governmental interference . .

The totality of the circumstances must be considered in determining whether reasonable suspicion exists . . . . An investigative stop must be justified by some objective manifestation that the person stopped is or is about to be engaged in criminal activity or else there must be reasonable grounds to believe that the person is wanted for past criminal conduct... .

[Citations omitted.]

In reviewing the totality of the circumstances, the officer's past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable. State v. Short, 96-1069, p. 4 (La.App. 4 Cir. 5/7/97), 694 So.2d 549, 552.

In the present case, the officers had reasonable suspicion to stop the vehicle. At issue is whether the officers also had probable cause to arrest Pham when they seized the box that Pham placed in the oversized pocket of his sweatshirt.

Probable Cause to Arrest

La.C.Cr.P. art. 213 provides in pertinent part:

A peace officer may, without a warrant, arrest a person when:

(1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor, it must be made immediately or in close pursuit;

(2) The person to be arrested has committed a felony, although not in the presence of the officer;

(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer;

It is not a prerequisite for the existence of probable cause to make an arrest that the police officers know at the time of the arrest that the particular crime has definitely been committed; it is sufficient that it is reasonably probable that the crime has been committed under the totality of the known circumstances. State v. Gates, 24,995 (La.App. 2 Cir. 1/19/94), 630 So.2d 1345, writ denied sub nom. Gates v. Jones, 94-0640 (La.6/17/94), 638 So.2d 1091. An arresting officer need only have a reasonable basis for believing that his information and conclusions are correct. Rodriguez v. Deen, 33,308 (La.App. 2 Cir. 5/10/00), 759 So.2d 1032, writ denied, 2000-1414 (La.6/23/00), 765 So.2d 1049. For an arrest, the law does not require that "reasonable cause to believe" be established by evidence sufficient to convict; the arresting officer need not be convinced beyond a reasonable doubt of the arrested person's guilt. La.C.Cr.P. art. 213; State v. Weinberg, 364 So.2d 964 (La.1978). The standard of reasonable cause to believe is a lesser degree of proof than beyond a reasonable doubt, determined by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer from which h...