State v. ShapiroState v. Shapiro
ARMSTRONG, Judge.
STATEMENT OF CASE
On April 25, 1997, the defendant, Ryan Shapiro, was charged with the possession with the intent to distribute marijuana. At his arraignment on May 13th he pled not guilty. After the case was reallotted to another section of court, several hearings were held on the defendant‘s motion to suppress the evidence. The trial сourt denied the motion on November 20, 1997. On December 15, 1997, the defendant withdrew his prior plea of not guilty and pled guilty as charged, reserving under State v. Crosby, 338 So. 2d 584 (La.1976), his right to appeal the trial court‘s ruling on his suppression motion. He waived all delays, and the court immediately sentenced him to eight years at hard labor, suspended, and placed him on five years active probation with several conditions. The trial court granted his formal motion for appeal on December 19, 1997.
FACTS
The following facts were gleaned from the suppression hearings held on October 17, October 31, and November 4, 1997.1 Just before noon on November 12, 1996, State Trooper Timothy Lafleur and a U.S. customs agent were on patrоl on I-10 in Jefferson Davis Parish. As they neared mile marker 62, they noticed a Chrysler driving up behind them in the left-hand lane. The car came within twelve feet of the police car and followed it for approximately one-half mile, and then it changed into the right-hand lane, passed the police car, and changed again into the left-hand lanе. The trooper pulled over the Chrysler, which was being driven by a woman. The woman, identified in the transcript as
Trooper Lafleur then issued a warning citation to Mrs. Delvige for following too closely in violation of
State Trooper John Schmidt testified he participated in a controlled delivery of approximately thirty-one pounds of marijuana to the defendant Ryan Shapiro on the evening of November 12, 1996 in New Orleans. Trooper Schmidt testified that earlier that day he received information concerning the seizure of marijuana in Jefferson Davis Parish from a car driven by the wife of Melvin Delvige. He testified that Mr. Delvige told officers in Jefferson Davis Parish that he was to deliver the marijuana to “Ryan” at his home on West End Boulevard in New Orleans. Mr. Delvige agreed to cooperate with the police, and he agreed to wear a microphone during the delivery. Trooper Schmidt testified the officers received the marijuana and packaged all thirty-one pounds in one box. At approximately 6:00 p.m. he met with Delvige, who told him that he was engaged in a marijuana smuggling business with Shapiro and had made ten prior deliveries totaling approximately two hundred pounds of marijuana over the past few months. Delvige stated he always contacted Shapiro by calling his pager from a certain pay phone and leaving a certain codе number. Delvige stated Shapiro would then either appear or call him back at that phone to make arrangements for delivery.
Trooper Schmidt testified that after speaking with Delvige, the officers placed a microphone on him. The officers first directed Delvige to go to 6539 West End Blvd., the place where Delvige had madе the prior deliveries. However, there was no answer at that address, and Delvige then went to a convenience store at the corner of Harrison Avenue and Milne Street, the place from which he regularly contacted Shapiro. In accordance with his standard procedure, he paged Shapiro from the pay phone in front of the store, leaving the usual code. Shortly thereafter,
Trooper Schmidt testified that Shapiro then went to the West End address, where he met with Delvige. The officers watched as Delvige took the package of marijuana out of his car and carried it inside the lower apartment at that address. Shapiro also went inside the apartment. Shortly thereafter, the officers entered the residence, which contained no furniture, arrested Shapiro, and seized the package. The officers advised Shapiro of his Miranda rights. Shapiro then consented to a search of his Jeep and of his residence in Metairie. The officers searched Shapiro and his Jeep, but they found no contraband. They took Shapiro to his Metairie residence and searched it, finding approximately one ounce of marijuana, various smoking devices, and $4,490.00 in a golf bag which he claimed belonged to members of his band.2
Errors Patent
A review of the record for errors patent reveals there are none.
Assignment of Error
By his sole assignment of error, the defendant contends that the trial court erred by denying his motion to suppress the evidence. The defendant does not attack the actual seizure of the marijuana from his former residence on West End Boulevard; instead, he alleges the initial traffic stop of Mr. and Mrs. Delvige in Jefferson Davis Parish was illegal. He argues that the illegality of the stop tainted Mrs. Delvige‘s consent to search the car, which led to the discovery of the marijuana which was ultimately delivered to the defendant. The defendant contends that this taint extended to the delivery of the marijuana to him and its seizure at his former residence.
Trooper Lafleur testified he stopped the Delvige‘s car because Mrs. Delvige was following the police car too closely in violation of
In Whren, officers observed a car sitting at an intersection containing two youths, both of whom were looking at something in the passenger‘s lap. The officers passed the car, made a U-turn, and drove back towards the car. The car turned right at the intersection without signaling and sped off, and the officers stopped the car for the traffic violations. As the officers approached
Likewise, in Kalie, an officer saw a car weaving between lanes. The officer stopped the car, and thе driver as well as the passenger (the defendant) appeared nervous. The occupants told the officer they were returning to Birmingham from Houston, where they had spent a few days visiting a friend. The officer determined the car had been rented by a third person, and the date of the rental indicated the occupants could not hаve been in Houston for longer than a day. The officer wrote a citation for the improper lane usage and asked the occupants to consent to a search of the car. He also called for canine backup. When the defendant refused to consent to the search, the officer told them they could go, but the car must remain. At that point, the canine unit arrived, and the detection dog “alerted” on the trunk of the car. The officer searched the trunk and found marijuana. On review of his conviction, the defendant argued the evidence should have been suppressed because the initial stop was merely a pretext in that the officer had been conducting a “drug interdiction patrol” at the time he stopped the car in which the defendant was riding. The Court rejected this argument, citing Whren and noting that the officer was justified in stopping the car for the traffic violation. The Court then noted the officer exceeded the scope of the traffic stop once he told the оccupants the car had to remain after they refused to consent to a search of the car. The Court found that the officer had reasonable suspicion to detain the car for a short period given the occupants’ nervousness and their story which was contradicted by the date of the car‘s rental. Once the narсotics dog “alerted” on the trunk of the car, the officers had probable cause to believe the car held contraband, and they were justified in searching it without a warrant.3
On appeal, defense counsel acknowledges Whren and Kalie, but he attempts to distinguish these cases by arguing that the traffic violation in this case, following too closely, is such a vaguely-worded statute as to be unconstitutional. He contends that any stop based upon an alleged violation of this statute cannot be upheld.
This argument concerning the constitutionality of
Contrary to the defendant‘s argument,
La.R.S. 32:81(A) has already been heldto be constitutionally specific. In State v. Cohen, 549 So.2d 884 (La.App. 2 Cir. 1989), writ denied, 559 So.2d 135 (La. 1990), a state trooper pulled over the defendant for following too closely behind another car. In the course of events, a search was conducted on the defendant‘s car; this search yielded 180 pounds of marijuana compressed in suitcases in the trunk. On appeal, one of the defendant‘s arguments was that the language of the statute was unconstitutionally vague. Citing State v. McCoy, 395 So.2d 319 (La.1980), the court discussed the test on the cоnstitutionality of a statute when the defendant is arguing a vagueness problem: Words used in statutes need not have the same precision as mathematical symbols. Due process requires only that the language of a statute have generally accepted meaning so that a person of ordinary and reasonable intelligence is capable of discerning its proscriptions and is given fair notice of the conduct which is forbidden by its terms. (citations omitted.)
Thus, in applying the aforementioned standard to
La.R.S. 32:81(A) , the court held that the statute was constitutionally specific:Here, the language of the statute, given a generally accepted meaning and read in pari materia, would indicate that a following car should leave enough room in case the car in front stopped suddenly.
In this case, the officer did not believe that the defendant had maintained enough room between his car and the car he was trying to pass; the officer believed that if the car in front of the defendant had stopped suddenly, there was a great possibility an accidеnt would occur.
We adopt the sound legal reasoning utilized in Cohen. Therefore, the defendant‘s contention is without merit; Cohen clearly states that
La.R.S. 32:81 is not unconstitutionally vague and we agree.
Giovengo, 96-1227, pp. 2-3, 692 So.2d at 463.
Although this court has not addressed the constitutionality of
Once the car was stopped, the Delviges’ contradictory answers to the officer‘s questions and Mr. Delvige‘s nervous demeanor gave Trooper Lafleur reasonable suspicion to believe the Delviges were involved in criminal activity. See Kalie. At that point, the trooper asked them to consent to a search of the car, and Mrs. Delvige agreed and signed a consent form. In State v. Irby, 93-2265, p. 5 (La.App. 4th Cir.1/13/94), 632 So.2d 798, 800, this court stated:
In order to rely upon the consеnt exception to the warrant requirement, the State must prove that the consent was freely and voluntarily given. See State v. Wilson, 467 So.2d 503 (La.1985), cert. den. Wilson v. Louisiana, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985); State v. Brown, 598 So.2d 565 (La.App. 4th Cir.1992), writ den. 605 So.2d 1092 (1992); State v. Valenzuela, 590 So.2d 89 (La.App. 4th Cir.1991) writ den. 593 So.2d 380 (1992), cert. den. Valenzuela v. Louisiana, 506 U.S. 843, 113 S.Ct. 130, 121 L.Ed.2d 84 (1992). The voluntariness of consent is a question of fact to be determined by the district court under the facts and circumstances of each case, and its determination is entitled to great weight on review. Wilson; State v. Ossey, 446 So.2d 280 (La.1984), cert. den.
Ossey v. Louisiana, 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984); Valenzuela.
See also State v. Nogess, 98-0670 (La.App. 4 Cir. 3/3/99), 729 So.2d 132; State v. O‘Shea, 97-0400 (La.App. 4 Cir. 5/21/97), 696 So.2d 115.6
Here, Troopеr Lafleur testified he asked the Delviges if they would consent to a search of the car, and Mrs. Delvige agreed to do so and signed the consent to search form. The trooper admitted he did not tell the Delviges they could go when he wrote the warning citation, but he insisted he told them they could refuse to consent to the search. The defеnse presented nothing to refute this testimony. Thus, the search was lawfully conducted pursuant to Mrs. Delvige‘s consent, and the marijuana found in the trunk of the car was lawfully seized.
As noted above, the defendant does not argue that the ensuing controlled delivery of the marijuana to his former residence in New Orleans was invalid, except to the extent that it was the product of the original stop in Jefferson Davis Parish. For the reasons set forth above, we find that the initial stop of the Delvige‘s car was lawful, as was the consensual search which revealed the marijuana. This assignment of error has no merit.
For the foregoing reasons, the defendant‘s conviction and sentence are affirmed.
AFFIRMED.