STATE of Louisiana, Plaintiff-Appellee,
v.
Enrique RIOS and Jesus P. Vasquez, Defendants-Appellants.
Court of Appeal of Louisiana, Third Circuit.
*164 Michael Bride, Lake Charles, for Vasquez.
*165 Ron Ware, Lake Charles, for Rios.
Richard Ieyoub, Dist. Atty., Lake Charles, for State of La.
Before GUIDRY, YELVERTON and KNOLL, JJ.
KNOLL, Judge.
Enriquе Rios and Jesus P. Vasquez (hereafter defendants) appeal their convictions for possession of cocaine in excess of 200 grams but less than 400 grams, violations of LSA-R.S. 40:967 F(2). Defendants were originally charged with possession of 400 or more grams of cocaine, а violation of R.S. 40:967 F(3), but pursuant to a plea bargain they pleaded guilty to the mid-grade possession charge, and reserved their right to appeal the trial court's denial of their motion to suppress. See State v. Crosby,
FACTS
On February 26, 1987, defendant Vasquez was driving a vehicle westbound on I-10 just west of Iowa, Louisiana. Defendant Rios was a passenger. After Trooper Charles Jones clocked Vasquez travelling 76.2 m.p.h. in a 55 m.p.h. zone, Lt. Joseph Valenti, who was assisting Trooper Jones, stopped defendants for speeding. Within a few minutes Trooper Jones joined Lt. Valenti at the scene.
Vasquez, the driver, went to Trooper Jones' vehicle for issuance of the traffic сitation and, for the officers' protection, Rios joined Lt. Valenti at the rear of Valenti's vehicle. While Trooper Jones was issuing the citation for speeding to defendant Vasquez, Lt. Valenti separately asked defendants a few questions. Because dеfendants made contradictory statements to Lt. Valenti as to where they were coming from, Lt. Valenti read defendants their Miranda rights and requested permission from Vasquez to search the vehicle. Defendant Vasquez verbally consented to a search of thе vehicle.
While Lt. Valenti waited for defendant Vasquez to pull the trunk release from the interior of the vehicle, Trooper Jones stood on the passenger side as defendant Rios obtained the registration papers from the glove compartment. While defendants were inside the vehicle, Trooper Jones observed both of them trying to move something from the driver's side. Fearing for his safety, Trooper Jones pulled defendant Rios out of the way and discovered a plastic bag in plain view containing a greеn vegetable-like substance.
Lt. Valenti had opened the trunk and lifted it approximately a foot when Trooper Jones discovered the plastic bag. Lt. Valenti shut the trunk without conducting a search, placed defendants under arrest for possession of narcotics, transported them to Troop D, and impounded the vehicle.
Sgt. Jerome Sigur and other narcotics officers searched the impounded vehicle at police headquarters and seized 878.7 grams of cocaine.
MOTION TO SUPPRESS
For an accused to invоke the rule excluding evidence obtained by an alleged illegal search and seizure it is necessary for him to file a pre-trial motion to suppress the evidence under LSA-C.Cr.P. Art. 703, and the failure to do so, in the absence of a showing of surprise or lack of oрportunity to file such a motion, operates as a waiver of any claimed violation of constitutional rights against searches and seizures. State v. Jenkins,
The record shows that the only defendant who filed a motion to suppress was Rios. Therefore, although Vasquez arguеs *166 in brief that the trial court erred in failing to suppress the cocaine seized, he never filed a motion to suppress. Vasquez neither established surprise nor lack of opportunity to file such motion. Under these circumstances, Vasquez cannot complain of an unconstitutional search, if any existed, and the trial court's use of testimony by judicial notice at Rios' suppression hearing.
JUDICIAL NOTICE OF TESTIMONY
Defendant Rios contends that at the hearing on his motion to suppress the trial court erred in taking judicial notice of testimony Lt. Valenti аnd Sgt. Sigur gave at defendants' preliminary examination. Lt. Valenti and Sgt. Sigur testified at defendants' preliminary examination which was held immediately before the hearing on the motion to suppress. At the State's request, the trial court took judicial notice at the suppressiоn hearing of the officers' earlier testimony regarding Vasquez's consent to search and the search of the impounded vehicle, and did not require them to take the stand for the suppression hearing. Defense counsel timely objected to the trial court's action.
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. LSA-C.Cr.P. Art. 921. Even when error is committed, if an appellate court finds beyond a reasonable doubt that error was harmless in light of the total circumstances, defendant's conviction will not be overturned. State v. Humphrey,
Considering the record before us, assuming arguendo that the trial court erred in taking judicial notice of the officers' prior testimony, defendаnt Rios has not established that the trial court's use of judicial notice prejudiced him in any way. The record reflects that at the hearing on the preliminary examinations the State questioned Lt. Valenti extensively about Vasquez's consent to search and elicitеd comprehensive testimony from Sgt. Sigur relative to the search he conducted of the impounded vehicle. Furthermore, defendant thoroughly cross-examined both witnesses on these issues.
Defendant's assignment of error is without merit.
SEARCH AND SEIZURE
Defendant Rios contends that the cocaine found during the search of the trunk of the automobile Vasquez was driving should have been suppressed since there was no search warrant. He further contends the State failed to affirmatively establish that Vasquez consented to the search.
Since defendant Rios was neither the owner nor thе driver of the vehicle searched, we must first determine whether he has standing to question defendant Vasquez's consent to search the automobile. LSA-Const. Art. 1, Sec. 5 provides "any person adversely affected by a search or seizure conducted in violation оf this section shall have standing to raise its illegality in the appropriate court." Therefore, since defendant Rios is adversely affected by Vasquez's consent, he has standing to raise the voluntariness of the consent. See State v. Owen,
A search conducted with the consent of a defendant is an exception to the warrant and probable cause requirements of the law. State v. Tennant,
*167 Defendants were stopped on I-10 just west of Iowa, Louisiana for traveling 76.2 m.p.h. in a 55 m.p.h. zone. In explanation of why Lt. Valenti asked for consent to search the car, he stated:
"I asked Mr. Rios: Where were ya'll coming from? And he said Miami. He said they had been down there to possibly open up a new shop. They were mechanics, or did something to windows, and paint jobs, or what have you. So, I then walked back to Mr. Vasquez, and asked him where he had been coming from. Mr. Vasquez advised me at that time that he was coming from New Orleans. I then asked: Have you ever been to Miami recently? And he paused, and he waited awhile, and then he finally answered, yes, he had been down there to visit friends. I then walked back to Mr. Rios, and asked him where they had been at the whole timе, and he says, we had been driving the whole way. And I said, that's a long drive. He says, but we've been switching drivers off and on, driving the whole way. And I asked him: You never stopped anywhere like Birmingham, Alabama, Lafayette, and anywhere to get any kind of sleep? and he says, no they were driving strаight on through. So, I walked back to Mr. Vasquez, and I asked Mr. Vasquez: Where in New orleans [sic] did you stay? And he says, we stayed at the Howard Johnson's. At that point I advised Mr. Vasquez of his rights. I told him between him and Mr. Rios, they were not telling me a proper story. I believed there was something wrong with thеir statement. I asked him permission to search his vehicle. I advised him of his rights, and told him that he did not have to allow me to search his vehicle, and at any time he wished, he could stop me from searching the vehicle. He advised me verbally that he did not mind me searching the vehicle."
The record is clear that Vasquez consented to the search, and establishes that Vasquez himself opened the locked trunk. See State v. Ketton,
Defendant's assignment of error lacks merit.
IMPRISONMENT IN LIEU OF FINE
Finally defendants contend the trial court erred in imposing an alternative jail sentence in lieu of payment of a fine and court costs because of their indigency.
The necessity of appointing counsel from the Office of the Public Defender to represent a defendant establishes indigency. State v. Williams,
LSA-C.Cr.P. Art. 884 provides in pertinent part, "If a sentence imposed includes a fine or сosts, the sentence shall provide that in default of payment thereof the defendant shall be imprisoned for a specified period not to exceed one year;..." Nonetheless, it is also a well settled rule that an indigent criminal defendant may not be imрrisoned in default of payment of a fine beyond the maximum authorized by the statute regulating the substantive offense. Williams v. Illinois,
However, we note that in State v. Leblanc,
"While the issue at bar has never been discussed at length by the Louisiana Supreme Court, the court has recently granted writs of review to numerous cases in which indigent defendants were appealing their sentences which included a fine and/or costs and, in default of payment, imposed an additional term of imprisonment. State v. Grant,490 So.2d 272 (La.1986). See State v. Barlow,488 So.2d 180 (La.1986); State v. Bartie,488 So.2d 180 (La.1986); State v. Pinkney,488 So.2d 682 (La.1986). State v. Williams,484 So.2d 662 (La.1986); State v. Garrett,484 So.2d 662 (La.1986). In each decision the court summarily affirmed the convictions but amended the sentences to delete that portion which imposed additional imprisonment in default of payment of a fine or costs and cited Williams v. Illinois, supra; Morris v. Schoonfield,399 U.S. 508 ,90 S.Ct. 2232 ,26 L.Ed.2d 773 (1970); Tate v. Short,401 U.S. 395 ,91 S.Ct. 668 ,28 L.Ed.2d 130 (1971); Bearden v. Georgia,461 U.S. 660 ,103 S.Ct. 2064 ,76 L.Ed.2d 221 (1983) to support their holding."
See also State v. Smith,
Since the Louisiana Supreme Court has evidently determined that an additional jail term imposed on an indigent defendant in dеfault of payment of a fine is an illegal sentence, we are constrained to conclude that defendants' argument has merit. Therefore we amend defendants' sentences to delete that portion which imposes a term of imprisonment in default of рayment of the fine. In all other respects their sentences are affirmed.
DECREE
For the foregoing reasons, the convictions of Jesus Vasquez and Enrique Rios are affirmed. However, that portion of their sentences which imposed a term of imprisonment in default of payment of the fine is deleted.
JESUS VASQUEZ'S AND ENRIQUE RIOS'S CONVICTIONS ARE AFFIRMED; VASQUEZ'S AND RIOS'S SENTENCES ARE AMENDED AND AFFIRMED.
ON REHEARING
PER CURIAM.
We granted a rehearing for the limited purpose of considering Jesus P. Vasquez's motion to suppress evidence which he alleged was obtained by an illegal search and seizure. We stated in our original opinion at page 3 that we could not consider Vasquez's argument because he had not filed a motion to suppress. In an application for rehearing, Vasquez has attached a certified copy of his motion to suppress which was inadvertently excluded from the appellate record. We have now reviewed his motion to suppress, and find that a rehearing is unnecessary. Although we have now concluded that Vasquez did have standing to question the trial court's denial of his motion to suppress, we have concluded that the reasoning assigned in our original opinion regarding Enrique Rios' motion to suppress is also dispositive of Vasquez's motion.