State v. Spencer
| Decision Date | 04 September 1979 |
| Docket Number | Nos. 63917,64066,s. 63917 |
| Citation | 374 So.2d 1195 |
| Parties | STATE of Louisiana v. Earl SPENCER. STATE of Louisiana v. James JOHNSON. |
| Court | Louisiana Supreme Court |
Larry P. Boudreaux, Thibodaux, for defendants-appellants.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.
Earl Spencer and James Johnson were separately indicted by the grand jury for the crime of possession with intent to distribute marijuana in violation of La.R.S. 40:966. After separate trials by jury, both defendants were found guilty as charged and each was sentenced to serve ten years at hard labor and to pay a fine of fifteen thousand dollars. Defendants separately appealed to this court, each relying on six assignments of error for reversal of his conviction and sentence. 1
(Spencer and Johnson)
Defendants contend the trial judge erred in denying their joint motion to suppress physical evidence on the ground that the evidence was obtained as a result of an unconstitutional search and seizure.
We have reviewed the record and find that the trial judge accurately set forth in his per curiam comments the facts as they relate to the search and seizure. Accordingly, we adopt the following statement of facts as our own:
During the latter part of April of 1978, a confidential informant told Lafourche Parish Sheriff's Narcotics Agent, Alan Wall, that certain individuals would attempt to bring a large shipment of marijuana into the United States through the Port Fourchon area in the near future. The informant related that the leader of the operation was Jack Nichols and that two of the participants were Thomas Ruth and Jerry Trent. The informant further related that the shipment would be brought in by boat and loaded into large trucks for transportation. At a later point in time, the informant advised that the vessel YUCATAN would be used in this smuggling operation. The confidential informant had proved his reliability on two or three previous occasions when he furnished information which led to arrests.
The Port Fourchon is a publicly owned dock and boat landing under the jurisdiction of the Greater Lafourche Port Commission (R.S. 34:1651 Et seq.). It is located in Lafourche Parish approximately two or three miles up Bayou Lafourche from the Gulf of Mexico and is south of the Leeville Community. It is used by fishermen and by persons engaged in gulf offshore oil field transportation. Access to the port may be achieved from the Gulf of Mexico through Bayou Lafourche. Access to the port by road is by La. Highway 1, and then west on La. Highway 3090 (the Fourchon Road). The dock area is fenced and there is a gate at the road entrance which remains open. The water entrance is a channel approximately one hundred (100') feet in width. Portions of the port area are leased to private firms or individuals but the public has the use and access to all dock facilities at any time. It is the policy of the Greater Lafourche Port Commission that law enforcement agents and officers shall have free access to all port facilities at any time.
After his conversation with the reliable confidential informant, Captain Wall made contact with State Police Narcotics Agents and area customs officials, and an investigation was commenced. A command post headed by State Police Lieutenant Donald Breaux was set up at the Tropicana Motel on Grand Isle, Louisiana. Several agents conducted continuous surveillance of the port area, on the residence of Jack Nichols located near the Lions Den Lounge in the Leeville Community, and on several business places in the Leeville area.
Customs aircraft were used during the investigation for monitoring offshore traffic near the Port Fourchon area. Prior to the night in question, information was received from the informant that the vessel YUCATAN entered the port and was met by Jack Nichols. 2 On May 24, 1978, Customs Pilot Kennedy Downie, reported that the YUCATAN was located approximately fifty (50) miles offshore from the Port Fourchon heading in a southerly direction. On the afternoon of May 25, 1978, Sergeants Mark Zeringue and Paul Trahan of the Louisiana State Police observed two trucks, one a ten-wheeler and the other an eighteen-wheeler being escorted south on La. Highway 1 by a black and white Lincoln Continental. The ten-wheeler truck was followed to the Lions Den in Leeville and the eighteen-wheeler truck was followed to Grand Isle. 3
At approximately 10:45 o'clock p. m. on May 25, 1978, State Police Officer Ronnie Theriot and Customs Agent Dick Ward were put down on the Fourchon Road five hundred (500') feet from La. Highway 1. They then walked through the bushes along the Fourchon Road and positioned themselves on the west or left side of the road entrance to the port, where they remained until approximately 1:50 o'clock a. m. on the morning of May 26, 1978. From this position, they observed the ten-wheeler truck previously identified and several pickup trucks enter the port area. Officers Theriot and Ward also heard the sound of a boat engine in the dock area but saw no off-loading activity at that time. Officers Theriot and Ward kept other law enforcement officers in the vicinity informed of their observations by radio. This information was then relayed to the command post on Grand Isle. Theriot and Ward then walked closer to the dock area and observed the vessel YUCATAN from across the channel of the port water entrance. From that position they observed the ten-wheeler truck backed to the wharf were (sic) the YUCATAN was docked. Several persons were observed in the truck and on the boat. There was no light on the deck of the YUCATAN, but there was light radiating from within the hold of the vessel. Theriot and Ward could see people lifting bales from within the vessels hold and passing them to people on the deck of the vessel. The persons on the deck of the vessel then passed the bales over the dock and into the rear of ten-wheeler truck. The bales were similar in size and configuration to bales of marijuana previously observed by the officers. At this point in time, the command post on Grand Isle moved to the tank battery below the Fourchon Road.
At approximately 2:00 o'clock a. m. on May 26, 1978, the eighteen-wheeler truck previously identified was observed to enter the port area. At this time, the ten-wheeler truck was moved thirty (30') to forty (40') feet forward and parked. The eighteen-wheeler truck was then brought into position and backed to the dock in the same position in which the ten-wheeler truck had been located. After approximately fifteen (15) minutes of loading operations from the YUCATAN to the eighteen-wheeler truck all activities stopped. 4 At approximately 2:25 o'clock a. m. on May 26, 1978, based on the information transmitted to him from officers Theriot and Ward and based on the prior information obtained from the reliable confidential informant and from surveillance, Lieutenant Donald Breaux gave the order for all agents in the area to move in to the dock area of the port and arrest the persons present. Law enforcement agents then converged on the docking area of the port in a caravan of approximately six or seven vehicles with two agents in each.
Upon arriving at the parking lot and dock area of the port, agents saw bales of marijuana in the eighteen-wheeler through its opened back doors. A residue of marijuana was found on the deck and in the hold of the vessel YUCATAN. The YUCATAN had been completely unloaded. No evidence was seized from the YUCATAN. The ten-wheeler truck was opened after the eighteen-wheeler was inspected and found to contain all of the remaining bales of marijuana. The persons present in the port docking area were arrested by the law enforcement officers. The ten-wheeler and eighteen-wheeler trucks and their contents were seized and secured as evidence.
It is well settled that a search conducted without a warrant issued upon probable cause is Per se unreasonable under the fourth amendment, subject only to a few specifically established and well delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 93, 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Gordon, 332 So.2d 262 (La.1976). One of these exceptions to the warrant requirement is the so-called "automobile exception." This exception is based upon the existence of probable cause to search the vehicle and exigent circumstances which render it impractical to secure a warrant. Coolidge v. New Hampshire, supra; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Gordon, supra; State v. Tant, 287 So.2d 458 (La.1974); State v. McQueen, 278 So.2d 114 (La.1973).
In the instant case the officers clearly had probable cause to believe that the two trucks contained contraband which they were entitled to seize. The officers had received information from a reliable informant, who had previously furnished information leading to arrests, that certain individuals, three of whom were named, planned to bring into the United States by boat a large quantity of marijuana through the Port Fourchon area in the near future and thereafter to load the shipment into large trucks for transportation. The informant also related that the vessel YUCATAN would be used in the operation. This information triggered a three-to-four week investigation and surveillance. Specifically, officers observed one of the named suspects travel to New Orleans to secure two large trucks and later visit the YUCATAN a week or two before the incident at issue while it was docked at Port Fourchon. Additionally, the YUCATAN was observed shortly thereafter about fifty miles offshore from Port Fourchon in the Gulf of Mexico...
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