Opinion
2022 KA 0676 2022 KW 0828
01-11-2023
STATE OF LOUISIANA v. STEPHEN FEREDAY SCHIBER
Warren LeDoux Montgomery District Attorney Matthew Caplan J. Bryant Clark, Jr. Assistant District Attorneys Covington, Louisiana Counsel for Appellee State of Louisiana Cameron Matthew Mary Mandeville, Louisiana Counsel for Defendant -Appellant Stephen Fereday Schiber
NOT DESIGNATED FOR PUBLICATION
ON APPEAL AND ON APPLICATION FOR SUPERVISORY WRIT FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT NUMBERS 0255-F-2020 AND 0256-M-2020 DIVISION D, PARISH OF ST. TAMMANY STATE OF LOUISIANA HONORABLE JOHN A. KELLER, JUDGE
Warren LeDoux Montgomery District Attorney Matthew Caplan J. Bryant Clark, Jr. Assistant District Attorneys Covington, Louisiana Counsel for Appellee State of Louisiana
Cameron Matthew Mary Mandeville, Louisiana Counsel for Defendant -Appellant Stephen Fereday Schiber
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
CHUTZ, J.
The State charged the defendant, Stephen Fereday Schiber, by a felony bill of information with two counts of possession of a schedule II controlled dangerous substance (Methamphetamine and Dextroamphetamine) of less than two grams, violations of La. R.S. 40:967(C)(1) (counts 1 and 2), and one count of possession of a schedule IV controlled dangerous substance (Diazepam), a violation of La. R.S. 40:969(C)(2) (count 3). The State also charged the defendant by a misdemeanor bill of information with one count of possession of drug paraphernalia, a violation of La. R.S. 40:1023(C). The defendant pled not guilty to all counts.
Prior to trial, the defendant moved to suppress[ evidence and his statement, and following a hearing, the motion to suppress was denied. Thereafter, the defendant withdrew his not guilty pleas and entered pleas of guilty under the provisions of La. Code Crim. P. arts. 893 and 894 and pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). The district court accepted the defendant's pleas and thereafter imposed sentencing. For the felony counts, the court deferred sentencing pursuant to Article 893 and placed the defendant on two years supervised probation on each count with the probation to run concurrently. The court further imposed a fine of $350 with respect to count one.[ On the misdemeanor count, the court deferred sentencing the defendant pursuant to Article 894, placed the defendant on two months unsupervised probation, and imposed a fine of $100
Neither the appellate record nor the defendant's writ application contain a written motion to suppress. In his argument to this court, the defendant's counsel, who also represented the defendant in the proceedings below, states that the request was made by oral motion. As recognized by this court, although La. Code Crim. P. arts. 521 and 703 imply that a motion to suppress should be in writing, in several cases, an oral motion to suppress has been reviewed without comment. See State v. Arvel, 481 So.2d 691, 695 (La.App. 1st Cir. 1985) (citing State v. Beals, 410 So.2d 745 (La. 1982)).
The minutes incorrectly reflect the $350 fine as being imposed with respect to counts two and three as well. Accordingly, we will remand the felony case to the district court for correction of the minutes to reflect imposition of a fine only on count one, as stated in the transcript, and, if necessary, correction of the commitment order. See State v. McMooain, 2014-1067 (La.App. 1st Cir. 3/6/15), 2015 WL 997164, at *1 n.2 and *4. writ denied, 2015-0655 (La. 2/26/16), 187 So.3d 467 (citing State v. Lynch, 441 So.2d 732, 734 (La.1983)).
Herein, the defendant appeals his felony convictions and seeks supervisory review of his misdemeanor conviction, urging as his sole assignment of error the denial of his motion to suppress.
The facts of this case are taken from the testimony and evidence presented at the motion to suppress hearing.
Detective George Crater with the Covington Police Department was the sole witness to testify at the motion to suppress hearing. At the time of the hearing, on April 11, 2022, Crater testified that he had been working for the police department for a little over four years, but at the time of the defendant's arrest, on December 2, 2019, he had been working for the department for a little under two years.
Crater stated that while out patrolling on the night[ of December 2, 2019, he noticed the defendant's vehicle parked in a Walgreens parking lot "as far away from the business as possible in the comer of the parking lot away from the general kind of parking area." Crater said that after noticing the running vehicle parked in the Walgreens parking lot a second time and further noticing that the vehicle had been sitting in the parking lot "for quite a while," he decided to approach the vehicle. As Crater explained, "I thought it was odd given that, because it was later at night, the majority of the parking lot was empty, so there were plenty of spots for parking if you were to go into that business."
It was later disclosed that it was around 11:42 p.m.
Crater was wearing and activated his body camera during his encounter with the defendant. On approaching the defendant's vehicle, Crater made contact with the defendant, who was alone in the vehicle. He described the defendant's reaction to his approach as a little "scared or frantic with his movements." Crater further stated that when he put his spotlight on the defendant's vehicle prior to approaching it, he could "see very frantic moving going on inside the vehicle," which made him more suspicious. On making contact, Crater asked the defendant for his driver's license and observed that the defendant "continued to kind of fidget in the vehicle messing with bags and things" that were just in the defendant's general area.
Crater also noticed that the defendant's pants were unbuckled, and the defendant appeared to be doing something around his waist. On being questioned, the defendant informed Crater that he was applying medicine for a condition, which Crater believed was scabies. When the defendant pulled a bag out to show Crater the medications for his condition, Crater testified that the defendant knocked something off the center console into the back seat.
Thereafter, Crater asked the defendant for permission to search his vehicle, to which the defendant initially responded, "why?" Before Crater could fully respond, the defendant responded, "I mean, you can, but it's a mess."[ Upon searching the vehicle, Crater found a vial on the floor, directly behind the center console, that contained illegal narcotics. The defendant was then arrested, and about four minutes after being handcuffed, he was administered Miranda warnings.[
On the body camera recording, the defendant appears to say, "I mean, you can, but it's a f****** mess "
It was established at the hearing that any statements made by the defendant between the time he was handcuffed and the time he was administered Miranda warnings would be suppressed. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
On cross-examination, Crater acknowledged that the Walgreens at which the defendant was parked operated 24 hours a day. Crater further acknowledged that the defendant was not violating any criminal statutes by being parked at an open business.[ Crater admitted that when he asked the defendant what he was doing, the defendant told him that he was applying medication that he had just purchased from Walgreens to his waistline while waiting for his "old lady"[ who worked in Folsom. Crater also acknowledged that a check of the defendant's driver's license revealed that he had no warrants and was not wanted for anything.
On direct examination by the State, Crater was asked about an open bottle of beer that was observed in the defendant's vehicle. Crater said although open, it did not appear that any of the beer had been consumed. Crater further admitted that because the defendant was in a private parking lot, it was not illegal for him to have an open container of alcohol. See La. R.S. 32:300.
In the recording from Crater's body camera, the defendant later identified his "old lady" as his girlfriend.
Crater testified there were two police vehicles and two other police officers present during his encounter with the defendant.[ Crater pulled his unit behind the defendant's vehicle, which was parked in front of a curb, and the other police unit pulled up facing the driver's side of Crater's and the defendant's vehicles. While he would not concede whether it was physically impossible for the defendant to simply drive away, due to how the police vehicles were parked around the defendant's vehicle, Crater testified, "[i]t probably would have at least been challenging." Crater stated that he did not "believe" that he informed the defendant that he could leave or refuse to answer any more questions before asking the defendant's permission to search the vehicle. Crater conceded that because he was conducting an investigation, the defendant was not free to leave at the point he approached the defendant, and Crater considered the defendant to be detained.
Although it was never expressly stated or shown, Crater's testimony suggests that one of the other officers accompanied him in his police unit.
On re-direct examination, Crater averred that he was not lying about twice noticing the defendant's vehicle before deciding to approach the vehicle, despite his failure to mention such in his police report. Additionally, Crater explained that "[j]ust about everybody is nervous when the police pull them over, but most people, from my experience, as the stop goes on, they'll tend to kind of calm down essentially." Crater said the defendant did not calm down, despite having an explanation for his presence in the Walgreens parking lot.
The district court found the issue to be a "close call," but ultimately denied the motion to suppress.
DISCUSSION
The defendant contends that his consent to the search of his vehicle was not free and voluntary because his consent was given while he was being unlawfully detained. The defendant argues that while Crater's initial approach of his vehicle may have been legal, the detention became unlawful once the police discovered he had no active warrants and saw no evidence of criminal activity in plain view in his vehicle. The defendant, therefore, argues that his consent, given once the detainment had become unlawful without being given Miranda warnings, being told the purpose of the search, or being advised that he could decline consent, all while boxed in by three officers and two police vehicles, was not freely and voluntarily given.
The right of everyone to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, Section 5 of the Louisiana Constitution. In order to discourage police misconduct, any evidence recovered as a result of an unconstitutional search or seizure is inadmissible. State v. Hamilton, 2009-2205 (La. 5/11/10), 36 So.3d 209, 212. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. La. Code Crim. P. art. 703(A).
It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 2002-0333 (La. 4/9/03), 842 So.2d 330, 335. One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973).
When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress, the State bears the burden of proving the admissibility of any evidence seized without a warrant. La. Code Crim. P. art. 703(D). When the State seeks to rely upon consent to justify a warrantless search, it also must demonstrate that the consent was freely and voluntarily given without coercion. State v. Gorut, 590 So.2d 1268, 1271 (La.App. 1st Cir. 1991), writ denied, 595 So.2d 653 (La. 1992). The question of whether consent to a search was "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48.
A trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent abuse of that discretion. When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings. Legal findings or conclusions of the trial court are reviewed de novo. State v. Thompson, 2011-0915 (La. 5/8/12), 93 So.3d 553, 563.
In this case, Crater basically conceded that he detained the defendant prior to obtaining the defendant's permission to search the vehicle. However, such detention was not per se unlawful. Police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity "may be afoot," even if the officer lacks probable cause. United States v. Sokolow, 490 U.S. 1,7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1(1989) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968)). Louisiana Code of Criminal Procedure article 215.1 provides that a law enforcement officer may stop a person in a public place when he reasonably suspects the person is committing, has committed, or is about to commit an offense and demand of him his name, address, and an explanation of his actions. It has further been recognized that even when officers have no basis for suspecting a particular individual of criminal activity, they generally may ask questions of that individual as long as the police do not convey the message that compliance with their requests is required. State v. Long, 2003-2592 (La. 9/9/04), 884 So.2d 1176, 1184, cert, denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005).
Additionally, an otherwise valid stop is not inevitably rendered unreasonable merely because the suspect's car was boxed in by police cars in order to prevent it from being moved, though sometimes the magnitude of such police activity will compel the conclusion that an arrest had occurred. State v. Broussard, 2000-3230 (La. 5/24/02), 816 So.2d 1284, 1287. In Broussard, the Louisiana Supreme Court acknowledged that the police action of boxing in the respondent's Jeep subjected him to actual restraint. Nevertheless, the court found that because the officers did not draw their guns, did not handcuff the respondent, did not confine him in a patrol unit, nor force him to lie prone on the ground before discovering the cocaine packet in his pants pocket, the encounter lacked other arrest-like aspects that might lead a reviewing court to conclude that a de facto arrest had taken place. Broussard, 816 So.2d at 1288.
The footage from Crater's body camera reveals that on first approaching the defendant's vehicle, Crater questioned the defendant and requested his driver's license. Crater then left the defendant to return to his police unit to call in the defendant's driver's license and to run a search of the license plate on the defendant's vehicle. Prior to returning to the defendant's vehicle to question him about insurance on the vehicle,[ Crater told his fellow officers, "I got a feeling there is something in the car, but I don't necessarily want to dig through it." On re-approaching the defendant in his vehicle, Crater likewise advised the defendant, "Something is going on here. I just can't figure out what." Thereafter, Crater asked the defendant for permission to search the vehicle.
As the State notes in its brief to this court, Crater's check of the defendant's license plate revealed there was no reported insurance on the vehicle, although the defendant claimed to have proof of insurance at home when he was subsequently questioned by Crater.
At the suppression hearing, Crater testified regarding the facts that supported his suspicion that criminal activity may be afoot. Crater testified that his initial observations of the defendant's idling vehicle parked in an isolated area of the Walgreens parking lot for a prolonged period of time is what prompted him to approach the defendant's vehicle. He then explained that the defendant's actions on being approached - the defendant's nervousness and constant movement in the vehicle - is what made him suspect criminal activity may be afoot.
Unquestionably, Crater was justified in approaching the defendant's parked vehicle, which he had observed parked and idling in an isolated area of the Walgreens parking lot for a prolonged period of time. See State v. Marler, 2000-0493 (La.App. 1st Cir. 2/16/01), 797 So.2d 706, 709 (finding no Fourth Amendment detention by police who pulled up behind the defendant's vehicle and activated the emergency lights on their police unit after observing the defendant's vehicle stopped in the roadway for several minutes, particularly considering the hour of the night).[ Additionally, an officer has the right to conduct a routine license and registration check and may engage in conversation with the driver and any passenger while doing so. In order to further detain the defendant, however, Crater had to have articulable facts giving rise to a reasonable suspicion of some separate illegal activity that would justify further detention. State v. Bell-Brayboy, 53,413 (La.App. 2d Cir. 3/4/20), 310 So.3d 252, 263-64, writ denied, 2020-01061 (La. 12/8/20), 306 So.3d 427.
In Marler, 797 So.2d at 709, this court held "this action by the officers was no more or less than could be expected by diligent policemen who would likely approach any citizen under such circumstances to check to see what was going on, check on the physical condition of the driver of the vehicle, or render roadside assistance to a possibly stranded motorist."
As Crater stated at the suppression hearing, and even advised the defendant at the time of his detention, the officer's suspicion was triggered by the defendant's actions, which were, in part, illuminated by a spotlight that was directed toward the defendant's vehicle when Crater pulled up behind him in the Walgreens parking lot.[ However, as Crater only had reasonable suspicion to suspect criminal activity afoot, he elected to ask the defendant for permission to search his vehicle, which the defendant granted. See Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2048 ("In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence.").
In the recording from Crater's body camera, the other two officers who were present for the investigatory stop likewise commented on the defendant's constant movements in the vehicle.
In this case, footage from Crater's body camera reveals that he did not advise the defendant of his Miranda rights prior to asking him for consent to search the vehicle nor did Crater advise the defendant that he could refuse consent. Nonetheless, we find neither of those circumstances are sufficient to overturn the district court's ruling on the motion to suppress. An officer does not need any degree of reasonable suspicion, as opposed to intuition or "hunch," to ask for, and receive, consent to search a vehicle. State v. Strange, 2004-0273 (La. 5/14/04), 876 So.2d 39, 42 (per curiam). Further, a defendant's consent to the search of his vehicle is a non-communicative and non-testimonial statement falling completely outside of the Fifth Amendment and, therefore, outside of the Miranda protections incorporated in La. Const, art. I, § 13 and La. Code Crim. P. art. 218.1. State v. Palmer, 2009-0044 (La. 7/1/09), 14 So.3d 304, 310 n.3 (per curiam). And while knowledge of the right to refuse consent is one factor to be considered, the State need not establish such knowledge as an essential condition of effective consent. See Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2048; State v. Ruffin, 2012-1793 (La.App. 1st Cir. 6/7/13), 2013 WL 2490377, at *3, writs denied, 2013-1916, 2013-1925 (La. 5/2/14), 138 So.3d 1237.
In State v. Milton, 2012-2537 (La. 12/14/12), 104 So.3d 414 (per curiam), the trial court granted a motion to suppress because it found the officer's request that the defendant "hand over" a crumpled brown paper bag, which the officer noticed next to the defendant during a traffic stop, "was for all intents and purposes a command." Crack cocaine and drug paraphernalia were discovered in the bag, resulting in the defendant's arrest. On review of the suppression ruling, the Louisiana Supreme Court held the trial court legally erred in finding "the circumstances of being 'asked' for consent while lawfully detained at a traffic stop were elevated to being the legal equivalent of being 'command[ed]."' Citing Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), the supreme court observed, "not only is there no requirement to show the defendant knew he could refuse consent, but there is no requirement for police to provide that advice." Therefore, the supreme court found the evidence seized should not have been suppressed and reversed the ruling of the trial court. Milton, 104 So.3d at 415.
In this case, prior to asking the defendant for permission to search his vehicle, Crater disclosed his suspicion to the defendant that "[s]omething is going on here. I just can't figure out what." Crater then asked the defendant if he could search the vehicle. The defendant initially responded by asking, "why?" However, before Crater could fully reply, the defendant interrupted Crater and granted him permission. Despite the defendant's contention to the contrary, considering that there is no requirement that a defendant be informed of his right to refuse consent and considering that the actions of Crater and the other police officers were within the boundaries of the law as previously explained, we cannot say that the defendant's consent was anything less than free and voluntary. Accordingly, we find that the district court did not abuse its discretion in denying the defendant's motion to suppress. Consequently, the defendant's sole assignment of error is without merit.
CONCLUSION
For the foregoing reasons, we affirm the defendant's felony convictions and the deferred sentences imposed. We remand the felony case for the limited purpose of correcting the felony minutes to reflect imposition of a $350 fine for count one only, and, if necessary, correction of the commitment order as well. In exercise of our supervisory review of the defendant's misdemeanor conviction, we deny the writ application.
CONVICTIONS AND DEFERRED SENTENCES AFFIRMED; WRIT DENIED; AND REMANDED FOR CORRECTION OF THE FELONY MINUTES AND, IF NECESSARY, CORRECTION OF THE COMMITMENT ORDER.