State v. BrisbanState v. Brisban
809 So. 2d 923 (2002)
Pamela S. Moran, New Orleans, Counsel for Respondent.
KIMBALL, Justice.
Defendant was convicted of attempted possession of cocaine in violation of
Facts and Procedural History
At approximately 8:30 on the morning of October 25, 1996, New Orleans Police Officer Harry O‘Neil made an arrest for a drug offense at Louisianа Guest House located at 2216 Louisiana Avenue. Following the arrest, Officer O‘Neil noticed that there was no one on the front porch of the apartment building next door at 2212 and 2214 Louisiana Avenue. According to Officer O‘Neil‘s testimony taken at a subsequent hearing on a motion to suppress, this was significant to him because he customarily spoke with “several older people” who sat on the porch and they had told him “if they are not on the front porch that means that there is drug activity in the area as they don‘t want to be associated with it.” Upon noting that the front porch was empty, Officer O‘Neil walked onto the porch of the apartments to check on and talk to one of the individuals who usually sat on the porch. As he walked onto the front porch, he observed through the screen door of the apartment at 2212 Louisiana Avenue a man cutting crack cocaine with a razor blade on a coffee table littered with drug paraphernalia. The officer also sаw another man, later identified as the defendant, sitting upright on a sofa behind the coffee table. When Officer O‘Neil entered the residence, defendant lay on the sofa and pretended to be asleep. Officer O‘Neil arrested both men and, during a search incident to the arrest, discovered two crack pipes containing cocaine residue in defendant‘s coat pocket. The officer also discovered a metal push rod and a razor blade in defendant‘s pants pоcket.
On January 23, 1997, defendant was charged by bill of information with one count of possession of cocaine in violation of
Subsequently, prior to the lodging of the full appellate record, defendant filed a pro se Motion in Arrest of Judgment, or in thе alternative, Motion for New Trial based on newly discovered evidence. Specifically, defendant argued that the trial court should grant him a new trial because his counsel was unprepared for trial, and therefore ineffective, and because he had obtained an affidavit signed by his co-defendant stating that defendant was asleep when Officer O‘Neil entered the residence and had no knowledge of the cocaine being in the house. The court of appeal remanded the matter to the trial court for a hearing on the motion. On May 10, 1999, the trial judge denied defendant‘s motion without hearing argument or testimony.
On appeal, the court of appeal reversed defendant‘s conviction and sentence and remanded the matter to the trial court for a new trial. The court found that the trial court erred in denying defendant‘s motion to suppress and his motion for a new trial. Specifically, the court found that the arresting officer never observed defendant committing any crime or participating in
This court granted certiorari to review the judgment of the court of appeal. State v. Brisban, 00-3437 (La. 11/9/01), 801 So. 2d 364.1
Law and Discussion
In its first assignment of error, the State contends that the court of appeal erred in rеversing the trial court‘s denial of defendant‘s motion to suppress. The State alleges that the court of appeal‘s findings that Officer O‘Neil violated defendant‘s reasonable expectation of privacy when he entered the front porch of the apartment building and approached the front door of 2212 Louisiana Avenue, and that Officer O‘Neil had no probable cause to arrest defendant were erroneous. In response, defendant argues that because Officer O‘Nеil had no legitimate reason to be on the front porch and because the officer never observed defendant involved in any illegal activity, the court of appeal was correct in concluding that the trial court erred in denying the motion to suppress.
The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
The curtilage of a home, that “area to which extends the intimate activity associated with the sanctity of a man‘s home and the privacies of life,” is considered part of the home itself and is therefore afforded Fourth Amendment protection. Oliver v. U.S., 466 U.S. 170, 180, 104 S. Ct. 1735, 1742, 80 L. Ed. 2d 214 (1984) (internal quotation omitted). The front porch of a private residence falls within the curtilage of the home and is therefore accоrded Fourth Amendment protection. State v. Deary, 99-0627, p. 1 (La. 1/28/00), 753 So. 2d 200, 201. A front porch does not necessarily enjoy the same measure of Fourth Amendment protection that a home does, however, because of “an almost implicit understanding and custom in this country that, in the absence of signs or warning, a residence may be approached and the occupants summoned to the door by knocking.” Deary at p. 1, 753 So. 2d at 201 (citing State v. Sanders, 374 So. 2d 1186, 1189 (La. 1979)).
In Deary, this court reaffirmed its prior holding in State v. Dixon, 391 So. 2d 836 (La. 1980), that “the police have the same right as other members of the public to approach the doorway of a home and see what was exposed by the owner to the view of the general populace.” Deary at p. 2, 753 So. 2d at 201 (internal quotation omitted). The court upheld the warrantless arrest of defendant Deary in his home based on probable cause acquired when an officer conducting a legitimate police investigation knocked on the side of defendant‘s house and observed through the opened front door the startled defendant drop a bag of crack cocaine. As the court noted in Deary, this hоlding was in accord with the great weight of authority that “police with legitimate business may enter the areas of the curtilage which are impliedly open to use by the public, and that in so doing they are free to keep their eyes open and use their other senses.” Deary at p. 2, 753 So. 2d at 201 (citing 1 Wayne R. LaFave, Search and Seizure, § 2.3(c), p. 483 (1996)). See also United States v. Taylor, 90 F.3d 903, 909 (4th Cir. 1996) (Police observation of cocaine and currency through large picture window next to the front door where the officers were standing did not constitute an illegal search because the front entrance “was as open to the law enforcement officers as to any delivery person, guest, or other member of the public.“); Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964) (Police officers’ view of marijuana when front door of defendant‘s residence opened in response to their knock lawfully gave rise to probable cause to arrest the defendant; “[a]bsent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person‘s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man‘s ‘castle’ with the honest intent of asking questions of the occupant thereof—whether the questioner be a pollster, a salesman, or an officer of the law.“).
In the present case, Officer O‘Neil entered the front porch of the building to attempt to locate and speak to one of the older individuals who usually sаt on the steps of the apartment complex. Officer O‘Neil regularly spoke with several people who customarily sat on the steps and remembered they had told him that if they were not on the porch, then there was drug activity in the area. When he saw there was no one out, he walked onto the porch to try to locate and speak to one of the individuals who usually sat outside. The officer was therefore on the porch for a legitimate purpose when he looked
When the officer, who was lawfully on the front porch for a legitimate purpose, looked through the screen door and saw defendant‘s companion cutting the crack cocaine, exigent circumstances created a “now or never” situation with respеct to preserving evidence of a crime which justified the officer‘s immediate warrantless entry into the home to retrieve the cocaine and to arrest defendant‘s companion. See Roaden v. Kentucky, 413 U.S. 496, 93 S. Ct. 2796, 37 L. Ed. 2d 757 (1973) (“Where there are exigent circumstances in which police action literally must be ‘now or never’ to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation.“).
For the above reasons, we find the officer was legitimately on the front porch and lawfully approached and entered the apartment in which defendant was present.
Turning now to whether defendant‘s arrest was lawful, we note that an arrest is lawful when it is based on probable cause. Thus, defendant‘s warrantless arrest was lawful if the facts and circumstances known to the arresting officer were sufficient to justify a man of ordinary caution in believing defendant had committed or was in the process of committing a crime. Probable cause deals with probabilities аnd recognizes that a degree of uncertainty may exist. Gibson v. State, 99-1730 (La. 4/11/00), 758 So. 2d 782. Although mere suspicion cannot justify an arrest, the officer does not need sufficient proof to convict. Id. at p. 7, 758 So. 2d at 789; State v. Johnson, 422 So. 2d 1125 (La. 1982); State v. Davis, 407 So. 2d 666 (La. 1981).
The term “possession” in
A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control of it.... [G]uilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug.
State v. Smith, 257 La. 1109, 245 So. 2d 327, 329 (1971). See also State v. Sweeney, 443 So. 2d 522 (La. 1983); State v. Trahan, 425 So. 2d 1222 (La. 1983).
In the instant case, Officer O‘Neil reasonably concluded that defendant constructively possessed the crack cocaine and the drug paraphernalia on the table in
In its second assignment of error, the State argues that the court of appeal erred in finding the defendant‘s pro se motion for new trial should have been granted. Specifically, the State contends that the trial court‘s failure to hold a hearing on the motion was not in error and that despite the companion‘s sworn statement that defendant had no knowledge of the cocaine on the table, the verdict would have been the same since defendant physically possessed two crack pipes containing cocaine residue. Defendant, on the other hand, contends that the trial court‘s failure tо hold a hearing on his motion prejudiced him by depriving him of an opportunity to present evidence and witnesses to support his position that he was asleep and knew nothing of the drugs on the coffee table. Defendant argues that the testimony of his companion would have served to impeach the testimony of Officer O‘Neil and could have resulted in a different verdict.
Regarding the merits of the motion,
Applying these precepts to the present case, it is clear the trial court did not abuse its discretion in denying defendant‘s motion for a new trial. The companion‘s testimony was not newly discovered evidence within the meaning of
Defendant also alleged in his motion for new trial that his counsel was ineffective as he was unprepared for trial and was only appointed to his case the night preceding trial. With regard to the time of his counsel‘s appointment, defendant‘s allegation is unsupported by the record. The Docket Master indicates that defendant appeared in court for a status hearing represented by his trial counsel, Mr. F. Valteau, on September 9, 1997, over a month before his trial. Additionally, Mr. Valteau had represented defendant‘s companion since May 1997. Dеfendant‘s assertion that he is entitled to a new trial based on the fact that Mr. Valteau was “generally unfamiliar with his case, [and] that he had not had time to conduct any investigation” is without merit. Defendant‘s remaining allegations in his motion for new trial that his counsel was otherwise ineffective, such as those directed to his counsel‘s unpreparedness, are referred to post-conviction proceedings. See State v. Burkhalter, 428 So. 2d 449, 456 (La. 1983) (“Normally on appeal we do not address assignments relative to ineffective assistance of counsel, relegating such contentions to post conviction relief applications in the district court.“).
Accordingly, the court of appeal‘s reversal of the trial court‘s denial of defendant‘s motion for new trial was erroneous.
Decree
For the reasons discussed above, the decision below is reversed, and defendant‘s conviction and sentence are reinstated. Because the court of appeal‘s opinion pretermitted several of defendant‘s аssignments of error, the case is remanded to the court of appeal for consideration of defendant‘s remaining assignments of error.
JUDGMENT REVERSED; CONVICTION AND SENTENCE REINSTATED; CASE REMANDED TO THE COURT OF APPEAL.
JOHNSON, J., dissents.