State v. Common, 78 So. 3d 237

Defendant Tracy L. Common was charged with possession of MDMA with intent to distribute and possession of hydrocodone; the hydrocodone count was later found not proven at trial.
Defense motions to suppress and to quash the information were denied; supervisory review denied on appeal.
Trial commenced May 25, 2010; jury found guilty of MDMA possession and not guilty on hydrocodone.
On June 4, 2010, defendant was sentenced to seven years for MDMA possession; the State filed a habitual offender bill alleging three prior felonies.
Defendant stipulated to being a third felony offender; the court vacated the underlying sentence and imposed a ten-year enhanced sentence; on appeal, conviction affirmed, but multiple offender adjudication and enhanced sentence were vacated and remanded for resentencing.
The court also vacated the enhanced sentence and reinstated the underlying sentence, finding errors related to the advisement of rights and sentencing procedures.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of suppression ruling	Common argues evidence seized after an illegal stop should be suppressed	Common contends off-duty officer lacked authority to stop and detain	No abuse of discretion; suppression denial affirmed
Validity of multiple offender adjudication	State supported habitual offender status by stipulation	Defendant was not advised of right to remain silent; no competent proof of identity	Vacate multiple offender adjudication and enhanced sentence; reinstate underlying sentence and remand for resentencing
Right to hearing and right to remain silent	State complied via rights advisement; record supports waiver	No proper waiver of rights; advisement deficient	Reversible error; vacate adjudication and remand for proper proceedings
Sentencing procedure errors	Sentencing followed after adequate timing	Post-verdict motions and 24-hour delay not observed	Vacate underlying sentence and remand for resentencing; errors patent require correction

United States v. Jacobsen, 466 U.S. 109 (1984) (private citizen search; Fourth Amendment not implicated when not governmental actor)
State v. Gentry, 450 So.2d 773 (La. App. 5 Cir. 1984) (limits of Fourth Amendment when private citizen acts; not governmental action)
State v. Lavergne, 991 So.2d 86 (La. App. 1 Cir. 2008) (private citizen arrest for felony aggravated obstruction of a highway of commerce; no government action at initial stop)
State v. Cox, 5 So.3d 869 (La. 2009) (extensions of statutory obstruction and highway safety offenses; stops based on felonies permitted)
State v. Bergman, 887 So.2d 127 (La. App. 5 Cir. 2004) (search incident to lawful arrest; scope when arrestee not in immediate reach of vehicle)
State v. Doussan, 924 So.2d 333 (La. App. 5 Cir. 2006) (search incident to lawful arrest; constructive possession concepts)