State v. CalvertState v. Calvert
Defendant, Robert Calvert, was indicted on September 17, 1998 by the St. Charles Parish grand jury with possession with intent to distribute heroin in violation of
On September 25, 2000, defendant withdrew his former plea of not guilty and, pursuant to a plea agreement with the State, entered a plea of guilty to attempted possession with intent to distribute heroin, reserving his right to appeal the denial of his motion to suppress under State v. Crosby.1 That day, the trial judge sentenced him to 20 years of imprisonment at hard labor.
Defendant now appeals the denial of his motion to suppress the evidence contending that the police office lacked reasonable suspicion to conduct the intimal traffic stop. We have reviewed defendant‘s assignment of error and, for the following reasons, affirm his conviction and sentence.
Facts
At the suppression hearings, the following facts were presented. At about 4:00 a.m. on August 15, 1998, Detective Chester Kowalski of the St. Charles Parish Sheriff‘s Office was on patrol westbound on I-10 near mile marker 219 when he observed a 1991 black Acura with a Texas license plate cross the center line two times and the white fog line one time. Detective Kowalski activated the video camera in his police unit. When he observed the vehicle
After Detective Kowalski stopped the vehicle, he advised defendant of the traffic violation and asked for his driver‘s license. Defendant produced a Michigan driver‘s license. When Detective Kowalski queried whether defendant was falling asleep, defendant advised that he was wide awake because he had just refueled in Baton Rouge. Detective Kowalski found that statement suspicious because defendant was headed toward Baton Rouge on I-10. Defendant further advised that he was en route from Atlanta, where he was in college, to Houston where his girlfriend and the car‘s owner, Rebecca Weery, lived.
Based upon this information, Detective Kowalski decided to run a computer check on defendant. Defendant remained in his automobile while Detective Kowalski was in his police cruiser. Detective Kowalski noticed “a lot of movement inside of [the defendant‘s] vehicle” during that time-span. When Detective Kowalski returned to defendant‘s vehicle, he noticed defendant was breathing rapidly and his hands were shaking. He became more suspicious and asked defendant if he had any drugs, guns or large sums of U.S. currency, which defendant denied. Defendant then consented to a search of his vehicle.
While he was searching defendant‘s car, Detective Kowalski unzipped a hanging bag in the back seat. He found a second hanging bag inside the first hanging bag. Inside of the second bag, he found a McDonald‘s bag that contained a clear plastic bag containing fine white powder with a tan color.
Discussion
In his first assignment of error, defendant asserts that the trial court erred in denying his motion to suppress because the police officer lacked reasonable suspicion to justify the initial traffic stop. In support of his argument, defendant specifically contends that the videotape does not show any traffic violation as testified to by Detective Kowalski at the suppression hearing. He maintains Detective Kowalski‘s testimony is not credible because it is inconsistent with the videotape. Defendant alternatively asserts that any traffic violation was too minimal to afford a reasonable basis for interfering with a vehicle‘s freedom of movement as discussed by the Louisiana Supreme Court in State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053.
The Fourth Amendment to the United States Constitution and
In general, the decision to stop an automobile is reasonable where the police
According to Detective Kowalski, defendant committed a traffic offense by crossing the center line on three separate occasions and the white fog line on one occasion within a distance of less than one mile. Detective Kowalski testified that he activated the video camera in his police unit after defendant had crossed the center line twice and the fog line once. Detective Kowalski further stated that, after activating the camera, defendant crossed the center line a third time so Detective Kowalski activated the emergency lights on the police unit and stopped defendant‘s car. Defendant testified that he did not cross the center line and argues on appeal that the videotape supports his testimony.
At the suppression hearing, the trial court was faced with conflicting testimony of whether defendant committed a traffic violation by crossing the center line and/or fog line. The trial judge heard all the evidence and apparently found Detective Kowalski‘s testimony to be credible despite the alleged discrepancy between the videotape and his testimony.
The credibility of a witness is within the discretion of the trier of fact who may accept or reject, in whole or in part, the testimony of any witness and the credibility of witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. Inconsistency in a witness’ testimony is only one of the factors the fact-finder weighs in determining whether to believe a witness’ testimony. State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066. We will not re-weigh the trial court‘s assessment of Detective Kowalski‘s credibility on appeal.
Moreover, we find defendant‘s reliance, in his alternative argument, on State v. Waters, supra, is misplaced. In Waters, the defendant urged the Louisiana Supreme Court to find that his traffic violation was so de minimus that the objective approach set forth in Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), for determining the reasonableness of a vehicular stop is no longer reasonable. The supreme court rejected defendant‘s argument, reiterating that “that the objective standard of Whren `is indifferent to the relatively minor nature of the traffic offense.‘” Waters, supra at 1057.
Finally, the trial court‘s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 74, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118. We find no error in the trial court‘s denial of defendant‘s motion to suppress evidence.
Our review of the record according to
AFFIRMED; REMANDED.
Notes
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 may demand of him his name, address, and an explanation of his actions.