State v. CurtisState v. Curtis
Defendant, Willie F. Curtis, appeals from his conviction of possession of cocaine with intent to distribute. We affirm and remand.
On December 19, 1997, defendant was charged with one count of possession of cocaine, a violation of
On June 25, 1998, the district attorney filed an habitual offender bill of information against the defendant, alleging that he was a second felony offender. Pursuant to the plea agreement for the cocaine charge, defendant admitted the allegations contained in the habitual offender bill of information. Defendant was advised of his rights and signed a waiver of constitutional rights form. The trial judge then vacated defendant‘s original sentence and imposed an enhanced sеntence of 20 years imprisonment at hard labor, to be served concurrently with the sentence defendant was serving in 97-7875.
The evidence shows that on December 8, 1997, at approximately 11:57 p.m., Jefferson Parish Sheriffs Officers Jody Fruchtnicht and Brian Schuyler, stopped on Jefferson Highway а vehicle driven by defendant because the vehicle did not have a brake tag. Jamar Daniels occupied the front passenger seat of the car. Officer Fruchtnicht approached the vehicle on the driver‘s side, Officer Schuyler approached on thе passenger‘s side. Officer Fruchtnicht ordered defendant and Daniels to exit the vehicle because it was an area known as both a high-crime and drug area. The defendant quickly exited the vehicle and met Officer Fruchtnicht at the rear of said vehicle. Daniels did not immediatеly get out of the car, so Officer Schuyler told Daniels again to exit the vehicle. As he walked to the passenger side, Officer Schuyler shone his flashlight into the vehicle during the time that Daniels was exiting the car, so that he could see Daniels’ hands. Officer Schuyler testified that anytime somеone is getting out of their car while he is standing next to the vehicle, he uses his flashlight to watch the person‘s hands for his own safety. Officer Fruchtnicht testified that Officer Schuyler advised him that “there was possible narcotics in the vehicle that he [Officer Schuyler] could visually see at the time.” (R., рp. 24, 29, 37). After the officers saw the narcotics in the vehicle, defendant and Daniels were arrested, handcuffed and placed in the back seat of the police car. The narcotics were seized. The officers then seized a handgun which had been placed bеtween the driver‘s seat and the center console.
On appeal, defendant asserts that the trial court erred in denying the warrantless search of the passenger compartment of the vehicle which he was operating. He contends that Officer Schuyler conduсted an illegal search of his vehicle because the officer used a flashlight to illuminate the passenger side of the interior compartment of the defendant‘s vehicle. He argues that he was stopped for not having a brake tag and a search of the vehicle could not have provided any additional evidence relative to the traffic violation. Defendant cites Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), in support of his arguments.
The State responds that the trial judge‘s denial of the motion to suppress was correct because the drugs were in plain view. It argues that the officers madе a legal stop of the defendant‘s vehicle because the defendant committed a traffic violation and once defendant‘s vehicle was stopped, the officers were justified in ordering both the defendant and Daniels from the vehicle for officer safety. The Stаte argues further that it was reasonable for the officer to use his flashlight to watch Daniels’ hands as he exited the vehicle because the stop occurred near midnight in an area known for high crime and drug trafficking and, unlike defendant, Daniels did not immediately exit the vehicle.
The Unitеd States Constitution and the Louisiana Constitution prohibit unreasonable searches and seizures.
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 mаy demand of him his name, address, and an explanation of his actions.
In the present case, the officers observed the defendant driving a vehicle without an inspection sticker (brake tag), in violation of
The “plain view” doctrine permits a warrantless search if three requirements are met. In Texas v. Brown, 460 U.S. 730, 736-739, 103 S.Ct. 1535, 1540-1541, 75 L.Ed.2d 502 (1983), the United States Supreme Court discussed the “plain view” doctrine as follows:
... In the Coolidge plurality‘s view, the “plain view” doctrine permits the warrantless seizure by police of private possessions where three requirements are satisfied. First, the police officer must lawfully makе an “initial intrusion” or otherwise properly be in a position from which he can view a particular area. Id., at 465-468, 91 S.Ct., at 2037-2039. Second, the officer must discover incriminating evidence “inadvertently,” which is to say, he may not “know in advance the location of [certain] evidence and intеnd to seize it,” relying on the plain-view doctrine only as a pretext. Id., at 470, 91 S.Ct., at 2040. Finally, it must be “immediately apparent” to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. Id., at 466, 91 S.Ct., at 2038.
Although inadvertence is a charaсteristic of most legitimate ‘plain-view’ seizures, it is not a necessary condition. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 2304, 110 L.Ed.2d 112 (1990); See also State v. Stamp, 98-193, (La.App. 5th Cir. 7/28/98), 718 So.2d 531, 533. In Texas v. Brown, the police officer shone his flashlight into the car to better see both a green balloon held by defendant and an opened glove compartment. In that case, upon being apрroached by the officer, defendant who was holding a green balloon, dropped the balloon by his leg and then opened the glove compartment. The officer‘s conduct in shining his light into the car disclosed suspected narcotics. The
In State v. Bailey, 97-493 (La.App. 5th Cir. 11/12/97), 703 So.2d 1325, 1329, the police officer used his flashlight to look inside the passenger side of a vehicle, where he saw cocaine on the passenger seat. We found that the officer had not conducted an illegal search of the vehicle. One reason cited by the Court was that the cocaine was in plain view. We stated that “[t]his Court has held that, ‘if a vehicle is parked on a public street, an officer may stand beside it and look into the vehicle as may any member of the public.‘” See also: State v. Hay good, 26, 102 (La.App. 2nd Cir. 8/17/94), 641 So.2d 1074, 1078, writ denied, 94-2373 (La.1/13/95), 648 So.2d 1337 (“[t]he mere illumination of a vehicle‘s interior with a flashlight does not violate any rights of a defendant“).
In the present case, defendant was lawfully stopped for not hаving an inspection sticker on his vehicle‘s windshield. Officer Schuyler used his flashlight to illuminate the interior of the defendant‘s vehicle as a safety precaution since the passenger had not gotten out of the car. Under the jurisprudence, this does not constitute a search within the meaning of the Fourth Amendment. Therefore, the first of the three requirements held necessary for the plain view exception to apply is satisfied. Second, the officer “inadvertently” discovered the evidence. Finally, it was immediately apparent to the officer that the items observed “may be evidence of a crime, contraband, or otherwise subject to seizure.” Texas v. Brown, 103 S.Ct. at 1541. Therefore, we find that the trial judge did not err in denying the defendant‘s motion to suppress the cocaine.
Finally, as noted by the State, Knowles is not applicable to the instant case. In Knowles, an officer stopped the defendant for speeding, but issued him a citation rather than arresting him. The officer then conducted a full search of the defendant‘s vehicle, which revealed drugs beneath the driver‘s seat. The Court concluded that such a procedure violated the protections afforded by the Fourth Amendment. In the present cаse, the contraband was in plain view on the passenger‘s side of the vehicle, not discovered after an inventory search of the defendant‘s vehicle.
For the purpose of an error patent review the “record” in a criminal case includes the caption, the time and place of holding court, the indictment or information and the endorsement thereon, the arraignment, the plea of the accused, the bill of particulars filed in connection with a short form indictment or information, the mentioning of the impaneling of the jury, the minute entry rеflecting sequestration in a capital case, the verdict, and the judgment or sentence. State v. Oliveaux, 312 So.2d 337, 339 (La.1975); State v. Boudreaux, 95-153 (La.App. 5th Cir. 9/20/95); 662 So.2d 22, 28.
The record reflects that defendant was not advised of the three-year time limit for filing an application for post conviction relief, as required by
The record also reflects that the sentence is illegally lenient for two reasons. The trial judge failed to require that the sentence be served without benefit оf parole, probation or suspension of sentence for the first 5 years, as required by
Accordingly, the conviction for possession of cocaine with intent to distribute and the enhanced sentence for being a second felony offender are hereby affirmed. The case is remanded with an instruction to the trial judge to inform defendant of the provisions of
AFFIRMED AND REMANDED.