State v. DraneState v. Drane
Defendants, Steve Drane and Terri Haralson, were charged with production or manufacture of methamphetamine, a violation of
FACTS
As a result of a previous felony drug conviction, Defendant Terri Haralson (“Haralson“) was on parole and under the supervision of the Department of Corrections at the time of her arrest on the current charge. Haralson was supervised by probation and parole officer Alyce Roper. In June 1999, Officer Roper received a telephone call from an informant she considered reliable. The informant told her that Haralson was involved in the production and use of methamphetamine. Only a short time before this call, Haralson tested positive for methamphetamine use during a drug test given by Officer Roper. Based on the informant‘s tip and the recent results of the drug test, Officer Roper, along with several other probation and parole officers, decided to visit Haralson at her residence. Deputies from the Franklin Parish Sheriff‘s Department accompanied the probation and parole officers to Haralson‘s residence because they possessed an arrest warrant for Steve Drane (“Drane“), who lived at Haralson‘s residence. The arrest warrant for Drane was for failure to pay child support.
On June 28, 1999, probation and parole officers and sheriff‘s deputies went to the
Defendants were arrested for manufacturing or production of methamphetamine. Haralson was also arrested for violating her parole and for possession of a firearm by a convicted felon. On November 16, 1999, Defendants were jointly charged by a bill of information with manufacturing or production of methamphetamine, a violation of
A pre-sentence investigation was ordered and sentencing was scheduled for January 9, 2002. Defendants requested a continuance until January 11, 2002. At the sentencing hearing, Defendants filed a motion in arrest of judgment, which was denied. Both Defendants were sentenced to 40 years at hard labor the same day the judge denied the motion in arrest of judgment. A motion to reconsider the sentence was filed on behalf of both Defendants and denied on February 25, 2002. As part of the motion to reconsider, Defendants raised for the first time the issue of the trial court‘s failure to observe the 24-hour delay between the time of the denial of the motion in arrest of judgment and the sentencing. This appeal ensued.
On appeal, Defendants raise the following assignments of error:
1. The trial court erred in its denial of defendants’ motion to suppress the evidence found by the probation and parole officers;
2. the trial court abused its discretion when it rendered a sentence that was constitutionally excessive;
3. the trial court erred in rendering a sentence that violated defendants’ rights to equal protection under the law; and
4. the trial court erred in its failure to observe the sentencing delays found in
DISCUSSION
Motion to Suppress
We begin our discussion with Defendants’ motion to suppress the evidence
An individual on probation does not have the same freedom from governmental intrusion into his affairs as does the ordinary citizen. United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001); State v. Malone, 403 So.2d 1234 (La.1981). A probationer‘s or parolee‘s reduced expectation of privacy occurs as a result of his prior conviction and the circumstance of his agreement to allow a probation or parol officer to investigate his activities in order to confirm compliance with the conditions of his probation or parole. State v. Carter, 485 So.2d 260 (La.App. 3d Cir.1986).
Even though warrantless searches by a probation or parole officer are allowed, however, courts are in agreement that the searches must not be a “subterfuge for criminal investigation.” State v. Malone, supra, citing United States v. Dally, 606 F.2d 861 (9th Cir. 1979). The parole officer must believe that the search is necessary in the performance of his duties and reasonable in light of the total circumstances. State v. Odom, 34,054 (La.App.2d Cir.11/1/00), 772 So.2d 281. The Louisiana Supreme Court adopted a four-part test from the case of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), to determine whether a warrantless search by a probation or parole officer was reasonable. State v. Malone, supra. In order to determine whether a warrantless search was reasonable, a court must consider: (1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating the search, and (4) the place in which it was conducted. The State bears the burden of proving the admissibility of any evidence seized without a search warrant. State v. Shields, 614 So.2d 1279 (La.App. 2d Cir.1993), writ denied, 620 So.2d 874 (La.1993).
In the case sub judice, Haralson‘s reduced expectation of privacy allows for an intrusion on her person and residence by her parole officer. Officer Roper believed that an investigation and a possible arrest of Haralson might be necessary. Officer Roper had a duty to investigate the information provided to her by the informant, whom she considered reliable. Armed with the knowledge that Haralson had previously dealt narcotics and had tested positive for methamphetamine only a short time before the informant‘s tip, Officer Roper‘s responsibility was to commence an investigation of Haralson. Officer Roper‘s unannounced visit to Haralson‘s residence should not have been unexpected. Probation and parole officers have a duty to conduct unannounced random checks on probationers and parolees. As already established in the jurisprudence of this Court, it is proper for a parolee to agree to submit to such unannounced
A reasonable suspicion that criminal activity is occurring is necessary for a probation officer to conduct the warrantless search. State v. Epperson, 576 So.2d 96 (La.App. 2d Cir.1991), writ denied, 580 So.2d 920 (La.1991), citing State v. Malone, supra. The information from the informant gave Officer Roper the reasonable suspicion that Haralson was dealing narcotics again and, thus, violating the conditions of her parole. Further, Officer Roper‘s decision to allow other probation and parole officers to join her in the investigation was not a subterfuge for a police investigation. The officers served only to back up Officer Roper, providing officer safety and protecting all parties from possible harm. Likewise, the decision to allow deputies from the Franklin Parish Sheriff‘s office to accompany the probation and parole officers to Haralson‘s residence was not a subterfuge for a police investigation. Officers from other law enforcement agencies routinely accompany probation and parole officers to provide back up assistance. In this instance, the sheriff‘s office was also attempting to execute a valid arrest warrant on Drane. This is clearly not a subterfuge for a police investigation.
In applying the four-part test from Bell v. Wolfish, supra, we find that the trial court was correct in dismissing Defendants’ motion to suppress. First, the scope of the particular intrusion was appropriate. The initial search was done by probation and parole officers, in their official capacity of investigating possible criminal activity by one of their parolees, only after receiving a credible tip and only after Haralson tested positive for methamphetamine use. Second, the manner in which the search was conducted was appropriate. The initial search did not commence until after Haralson tested positive for methamphetamine use and the search was conducted only by probation and parole officers, who had the duty to investigate whether Haralson was involved in criminal activity. Third, the justification for initiating the search was appropriate. Officer Roper commenced the search based on a credible informant‘s tip and on the two positive drug tests of Haralson. Also, Haralson and Drane refused to answer the door until forced entry into the home was threatened by an officer. In addition, Haralson was found hiding in a bedroom. All these factors combined justified initiating a search. Finally, we examine the place the search was conducted. The search was conducted at Haralson‘s residence. While the home is a sacred venue for people, as previously stated, a warrantless search of the home of a parolee can be conducted by a parole officer if the officer has a reasonable suspicion that criminal activity is occurring. See State v. Malone, supra. Officer Roper had such reasonable suspicion through the informant‘s tip, coupled with Haralson‘s positive drug tests. The search of Haralson‘s home was also a reasonable exercise of Officer Roper‘s authority. She had the proper suspicions to perform a more thorough search and we conclude that the search was reasonable in light of the total circumstances.
Next, we find that the arrest of Drane was not a subterfuge for a criminal investigation. The Franklin Parish Sheriff‘s deputies had a valid arrest warrant for Drane. The sheriff‘s deputies did not participate in the initial search of Haralson‘s residence. Drane was living in the home of a parolee, so he also had a reduced expectation of privacy, knowing that Haralson‘s residence was subject to searches
Excessive Sentence
In 1999, at the time Defendants committed the current offenses,
The supreme court has stated that an ameliorative change in the penalty provision of a statute, which occurs after the commission of the offense, is a factor that can be weighed by the trial judge in imposing a sentence. State v. Clark, 391 So.2d 1174 (La.1980). The supreme court further noted, however, that it is the law in this state that the penalty provision in effect at the time of the offense is the applicable provision that must be followed. The trial judge should consider the amendments to the law, but he should not derogate from the penalty in effect at the time of the commission of the offense. Further, the legislature specifically stated in the 2001 amendment to
In fact, the legislature has dictated that no section of the Revised Statutes is retroactive unless it is expressly so stated in the statute.
Regarding the excessiveness of Defendants’ sentences, the test imposed by a reviewing court in determining such excessiveness is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in
Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates
A trial court has broad discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, a reviewing court may not set aside a sentence. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345.
Defendants were both sentenced to 40 years at hard labor. The sentence was the minimum sentence that could be given under the law in effect at the time of the commission of their offenses. A trial court does indeed have broad discretion to sentence within the statutory limits. A minimum sentence compelled by Louisiana law is presumed not to be excessive or violative of the guidelines. State v. Juarez, 624 So.2d 26 (La.App. 2d Cir.1993). Important elements which should be considered during sentencing are the defendant‘s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (La.1988), State v. Bradford, supra. The trial court, in the case sub judice, thoroughly examined these factors and gave Defendants the minimum sentence under the sentencing guidelines. It committed no error in making this determination. Haralson had already been convicted of one drug felony and was on parole. Drane had several misdemeanor offenses of which he had already been convicted. Drane is also being held for numerous felony drug related charges on which he was arrested during the time he was awaiting trial in the instant case. Considering the history of both Defendants, the sentence is neither grossly disproportionate to the severity of the offense nor shocking to our sense of justice. On this record, we do not find sentencing error. The sentence imposed,
Equal Protection
All people are afforded equal protection of the law.
Sentencing Delays
On January 11, 2002, Defendants filed a motion in arrest of judgment. This motion was denied that day and Defendants were subsequently sentenced on the same day.
If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.
In the case at hand, the trial court did not observe the 24-hour delay and Defendants did not waive the delay. In State v. Keleman, 444 So.2d 1328 (La.App. 2d Cir. 1984), writ denied, 447 So.2d 1069 (La. 1984), however, this court stated that, absent a showing that defendant was prejudiced by the failure to observe this delay, the court is not required to remand the case for resentencing. The supreme court further emphasized this point by stating this is even more true where a substantial amount of time has passed between the trial and sentencing. State v. White, 404 So.2d 1202 (La.1981). In White, the supreme court also stated that the 24-hour delay was not so imperative as to require a resentencing where the defendant could not show that he suffered prejudice from the violation.3 In State v. Keleman, supra, the verdict was rendered on December 9, 1982, and sentencing was originally set for December 28, 1982, but was delayed on request of defendant‘s counsel, as in the instant case. Actual sentencing occurred on January 4, 1983, at which time the defendant moved for a new trial. The motion for a new trial was overruled and sentencing occurred immediately thereafter on the same day. Under those circumstances, the court in Keleman said that the sentencing without delay would not compel a remand.
Likewise, in the instant case, Defendants were not prejudiced by the court‘s
In State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997), the Louisiana Supreme Court cited State v. White, stating that, “absent a showing that prejudice resulted from the failure to afford the statutory delay, reversal of the prematurely imposed sentence is not required.” In the case at hand, no prejudice resulted from the failure of the trial court to comply with the 24-hour delay. Defendants were given the minimum sentence and have failed to show any prejudice.
Furthermore,
A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.
The substantial rights of Defendants were not affected by the trial judge‘s decision not to follow the 24-hour delay found in article 873. We find that the failure was harmless error; and we further find, therefore, that this assignment of error is without merit.
CONCLUSION
For the foregoing reasons, the convictions and sentences of Defendants Terri Haralson and Steve Drane are affirmed.
AFFIRMED.