State v. KibodeauxState v. Kibodeaux
Defendant, Bernice D. Kibodeaux, was charged by bill of information with possession with the intеnt to distribute a controlled dangerous substance, to wit: fifty (50) pounds of marijuana, in violation of
The appellant lists the following assignments of error:
1. The evidence confiscated in this case was the product of an unconstitutional search and seizure and therefore should be suppressed.
2.
3.
BACKGROUND
Uncontradicted testimony received at the hearing оn defendant‘s motion to suppress establishes the following sequence of events. At approximately 11:20 p.m., September 22, 1981, defendant entered the Airport Lounge in Terrebonne Parish. Shе was approached at the bar by a man known as “Robert” and a woman who identified herself to defendant as “Dee“. Robert initiated the conversation with defendant, inquiring about marijuana, whereupon Bernice put her car keys on the bar, telling Robert and Dee that she had fifty pounds of marijuana in the trunk of the car and for them to “take a ride, sample it, and if you likе it, we‘ll do business“. Dee picked up the car keys and, together with Robert and another male identified as Wolfson, left the lounge and drove defendant‘s car to the Houma airport. They stopped the car, got out, opened the trunk and found a bale wrapped in a large green opaque trash bag and bound with tape. Dee cut a hole in the bale and took out a sample. She determined that it was marijuana, as defendant had said. They closed the trunk of the car
It was further established by uncontested testimony of Dee and Detective Sergeant Douglas Modrynsi that Dee and Wolfson were narcotics agents with the Terrebonne Sheriff‘s Department who had been requested by the Sheriff of Jefferson Parish to assist in a narcotics deal that was set up in Terrebonne Parish. Throughout the operation, Officer Modrynsi and his partner had been watching in a stationary automobile surveillance unit while other agents from Jefferson Parish were observing in moving units. On a prеarranged signal, the officers moved in when it appeared defendant was about to leave the scene in her automobile, taking with her the contraband.
ASSIGNMENT OF ERROR NO. 1:
Defendant urges the seаrch of defendant‘s vehicle and the resulting seizure of a bale of marijuana were illegal and unconstitutional and therefore, the illegally seized evidence should have been suppressed. An immediate warrantless search of an automobile is constitutionally permissible under the “automobile emergency exception” to the prohibition against warrantlеss searches if there is a probable cause to believe the vehicle contains contraband, the automobile is movable, there is a possibility of the occupants being alerted before a warrant can be procured, and contents of the automobile may never be found again if a warrant must be obtained. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Guzman, 362 So.2d 744 (La.1978), cert. denied, 443 U.S. 912, 99 S.Ct. 3103, 61 L.Ed.2d 876 (1978). See, e.g. State v. Cunningham, 412 So.2d 1329 (La.1982); also State v. Hernandez, 408 So.2d 911 (La.1981), cert. denied, ___ U.S. ___, 103 S.Ct. 90, 74 L.Ed.2d 83 (1982).
When the narcotics agent, “Deе“, found the marijuana in defendant‘s car trunk, this discovery was passed on to the various surveillance units, along with the information that the agents were driving the car containing the marijuana baсk to the lounge to talk about the price. Probable cause was established at this point sufficient for the obtaining of a search warrant. However, the situation became exigent when defendant exited the lounge with her car keys in her hand and entered her vehicle. The possibility of defendant driving away and disposing of the contraband became a real onе. Consequently, we find that probable cause for search of defendant‘s automobile existed together with exigent circumstances justifying a warrantless search.
As pointed out by the trial judgе in his reasons for judgment on defendant‘s motion to suppress, defendant seems to object to both the original “search” of defendant‘s car pursuant to defendant‘s permission and consent, resulting in the original discovery of the bale of marijuana, and also to the second “search” of defendant‘s car resulting in the discovery of the already opened bale of marijuana by the sheriff and deputies at the time of defendant‘s arrest.
In State v. Peters, 302 So.2d 888 (La.1974) cert. denied, 423 U.S. 878, 96 S.Ct. 151, 46 L.Ed.2d 111 (1975), the court found that an undercover agent‘s purchase of heroin from the defendant did not constitute a searсh and seizure. Likewise, we find that the preliminary sampling of the marijuana by the undercover narcotics agents in this
ASSIGNMENT OF ERROR NO. 2:
Defendant urges that Paragraph B of
“B. The secretary of the Deрartment of Health and Human Resources shall add a substance as a controlled dangerous substance if it is classified as a controlled dangerous substance by the Drug Enforcement Administrаtion of the United States Government.”
The defendant relies on State v. Rodriguez, 379 So.2d 1084 (La.1980), where the Supreme Court found section B of
ASSIGNMENT OF ERROR NO. 3:
Defendant argues that
In State v. Sliger, 261 La. 999, 261 So.2d 643 (1972), the court discussed this same argument:
“In connection with this claim of unconstitutionality it is argued in defendants’ brief that the statute is `vague, uncertain and indefinite because it doеs not adequately put on notice an ordinary person that he may be actually committing that crime. * * * there is no basis nor guidelines set forth in the Act by which one might determine the exact point at which simple possession of a controlled dangerous substance becomes “possession with intent to distribute.“’
The argument is without foundation. For, obviously, an offender knows whether hе is possessing the drug for his own use, or whether he is possessing with the intent to distribute. The nature of his intent in possessing is a question of fact, an essential element of the crime, which the State must provе to obtain a conviction. Crimes requiring specific intent or knowledge have long been part of the criminal law and have been codified in our Criminal Code.” 261 So.2d at p. 645.
Defendant further argues that, because
The district attorney has broad discretion in both the institution and handling of criminal prosecutions.
For the above assigned reasons, defendant‘s conviction and sentence are affirmed.
AFFIRMED.