State v. Vincelli

• Decision Date: 19 December 1989
• Docket Number: No. KA,KA
• Citation: State v. Vincelli, 555 So.2d 21 (La. App. 1989)
• Parties: STATE of Louisiana v. Nick VINCELLI. 88 1921.
• Court: Court of Appeal of Louisiana

Page 21

555 So.2d 21

STATE of Louisiana v. Nick VINCELLI.

No. KA 88 1921.

Court of Appeal of Louisiana First Circuit.

Dec. 19, 1989.

William R. Campbell, Jr., New Orleans, Attorney for the State.

Walter P. Reed, Dist. Atty., St. Tammany Parish and Roy K. Burns, Jr., Covington, for defendant.

Before CARTER, SAVOIE and ALFORD, JJ.

ALFORD, Judge.

Nick Vincelli was charged by bill of information with the possession of more than sixty pounds, but less than two thousand pounds, of marijuana, a violation of La.R.S. 40:966E(1). He pled guilty, reserving his right to appeal the denial of a pre-trial motion to suppress physical evidence. In accordance with the plea bargain, the trial court imposed a sentence of five years at hard labor. Defendant appealed, urging as his only assignment of error that the trial court erred by denying his motion to suppress.

Defendant was arrested after marijuana was discovered in a suitcase in the trunk of the vehicle he was driving. At the hearing on the motion to suppress, Trooper Ron Whittaker of the Louisiana State Police testified that he stopped the car that defendant was driving after he observed the right tires of the vehicle wander onto the shoulder of the highway three times within one-quarter mile. Trooper Whittaker related that he intended to charge the driver with improper lane usage. However, defendant was unable to produce proof of his ownership of the vehicle, and the registration check revealed that the car was registered to someone else. Trooper Whittaker further learned during his check that both defendant and his companion, Maria Prudente, had criminal records involving the possession of marijuana, although both individuals stated that they had never been arrested. After briefly questioning defendant and Ms. Prudente and receiving conflicting information concerning the purpose, point of origin, and destination of their trip, Trooper Whittaker asked defendant for permission to search the car. Defendant readily agreed to the search and signed a written consent form authorizing it.

No contraband was found in the passenger compartment of the automobile. However, Trooper Whittaker found three locked suitcases in the trunk. Although both defendant and Ms. Prudente appeared to search for a key to the suitcases, neither was able to produce one. Trooper Whittaker then advised defendant that he intended to call for a dog trained to detect narcotics. Apparently referring to his inability to produce registration papers for the vehicle, defendant told the officer, "That's fine. I know it looks bad." He requested, however, that his companion be permitted to use the restroom. Escorted by the officer, defendant was permitted to drive his car to a rest area approximately two miles away; he and his companion were allowed to use the facilities.

Trooper Whittaker continued the search at the rest area. Before the dog arrived, he was able to pry open one of the suitcases, which was not fully locked, and he found therein a green garbage bag containing a substance he suspected was marijuana. Defendant and Ms. Prudente were arrested at that time. Shortly thereafter, the dog and his handler arrived. During an inspection of the car, the dog strongly alerted to the presence of contraband. Trooper Whittaker informed defendant that the officers intended to conduct a more intense search of the car because of the dog's reaction to it. Defendant then produced keys to the suitcases from his wallet. Approximately eighty-three pounds of marijuana were found in the suitcases.

Both defendant and Ms. Prudente were charged with the possession of more than sixty pounds of marijuana. Defendant was separately charged with improper lane usage. The state dismissed the charge against Ms. Prudente and the bill of information charging defendant with improper lane usage in exchange for defendant's plea.

DENIAL OF MOTION TO SUPPRESS

In his only assignment of error, defendant complains of the trial court's ruling denying his motion to suppress the marijuana. He claims that he was subjected to two separate detentions: the initial stop, and a second detention and search at the rest area. He claims the second detention actually constituted an illegal arrest because it was based only upon the trooper's "hunch," rather than probable cause; therefore, his consent was vitiated and the resulting search was illegal.

Initially, we note that defendant's claim that he was subjected to two separate detentions is without merit. At the hearing on defendant's motion to suppress, Trooper Whittaker specifically testified that the search was not concluded at the time he permitted defendant and his companion to go to the rest area, but that he accommodated them as a matter of courtesy. He further related that he was certain that defendant was aware the search was not over. Trooper Whittaker had previously testified that he told defendant of his intention to call for a canine detector before the automobiles were moved. Accordingly, we find no merit to defendant's claim that this incident consisted of two separate searches; and, thus, we consider whether or not the investigatory stop gave rise to the probable cause to search defendant's automobile.

Although defendant contends that this situation is identical to the facts presented to this Court in State v. Bunnell, 517 So.2d 439 (La.App. 1st Cir.1987), we find defendant's comparison is unfounded. In Bunnell, this Court found the defendant's consent to search was tainted because the defendant was illegally detained. Therein, we noted that there were no facts known to the investigating officer which would have indicated that the defendant was engaged in illegal activity. Bunnell's car was stopped for speeding. The vehicle was properly registered to him in the state of New York, although both defendant and his companion had driving licenses issued in Florida. Although the information the investigating officer received from the accused and his companion may have been incomplete, it was not conflicting. The record reflects that the only facts known to the officer consisted of his awareness "of a lot of crimes that go on on the interstate," the apparent nervousness of defendant's companion, and the fact that the defendant carried a driving license from Florida, although he claimed that he lived in New York and the vehicle was registered to him in that state. 517 So.2d at 440-441.

Herein, although defendant claimed ownership of the vehicle, he could not produce evidence of ownership; and the registration was issued to another. Despite his claim that he had never been arrested, a records check indicated defendant had a criminal history involving the possession of controlled dangerous substances. Defendant and his companion gave conflicting information regarding the purpose, origin, and destination of their trip. Clearly, therefore, the investigating officer had more information available to him than did the officer who obtained the...