Opinion
2016 KA 1613
06-06-2017
STATE OF LOUISIANA v. TOBY CHAUVIN
Hon. Ricky Babin District Attorney Donaldsonville, LA and Donald Candell Assistant District Attorney Gonzales, LA Attorneys for Plaintiff/Appellee State of Louisiana Laura A. Signorell Baton Rouge, LA Attorney for Defendant/Appellant Toby Chauvin
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Third Judicial District Court In and for the Parish of Ascension State of Louisiana
No. 35088-89 Div. A The Honorable Jason Verdigets, Judge Presiding Hon. Ricky Babin
District Attorney
Donaldsonville, LA
and
Donald Candell
Assistant District Attorney
Gonzales, LA Attorneys for Plaintiff/Appellee
State of Louisiana Laura A. Signorell
Baton Rouge, LA Attorney for Defendant/Appellant
Toby Chauvin BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
The defendant, Toby Chauvin, was originally charged with possession of a firearm by a person convicted of certain felonies, a violation of Louisiana Revised Statutes 14:95.1 (count one) and possession of a schedule II controlled dangerous substance, a violation of Louisiana Revised Statutes 40:967C (count two). He entered a plea of not guilty and filed a motion to suppress, which was denied. Pursuant to a plea agreement wherein the State amended count one to illegal carrying of weapons, a violation of Louisiana Revised Statutes 14:95E, and nol-prossed count two, the defendant withdrew his former plea and entered a guilty plea under State v. Crosby, 338 So.2d 584 (La. 1976), reserving his right to appeal the denial of his motion to suppress. The district court then sentenced the defendant to five years at hard labor without the benefit of probation, parole, or suspension of sentence. He now appeals, challenging the denial of his motion to suppress. For the following reasons, we affirm the defendant's conviction and sentence.
FACTS
Because the defendant entered a guilty plea, the facts were not fully developed. The following facts are derived from the hearing on the motion to suppress. On November 3, 2015, around 10:30 p.m., Ascension Parish Sheriff's Office Detective Donald Hunt was parked across the street from a carwash located near Magnolia Estates and Highway 427, conducting surveillance due to recent burglaries of coin-operated machines in the area. The detective observed the defendant park his truck at the carwash. Another vehicle passed, and the defendant flashed his lights at the vehicle. Once the vehicle pulled into the carwash, the defendant exited his truck and entered the passenger side of the other vehicle. Approximately two or three minutes later, the defendant exited the vehicle, returned to his truck, and left the carwash. Around 2:00 a.m. on November 4, 2015, the defendant returned to the carwash and washed his truck. Another vehicle arrived at the carwash, and the defendant made contact with the driver. Afterward, that vehicle left, and the defendant began walking around the carwash, picking up trash, and looking up and down the road. The defendant then moved his truck toward the vacuum cleaner and began to shine a flashlight around the vacuum cleaner and air freshener area. This behavior "raised [Detective Hunt's] suspicions" because the area in which the defendant was using the flashlight was well-lit.
Detective Hunt contacted Ascension Parish Sheriff's Office Sergeant Tony Nethkin, who responded to the area and made contact with the defendant. According to Sergeant Nethkin, the defendant's vehicle was parked next to the coin-operated vacuum cleaners, and the defendant had a flashlight in his hand. The sergeant discovered that the defendant's driver's license had been suspended. After Detective Hunt and Detective Patrick Reames arrived on the scene, Sergeant Nethkin went to his vehicle to confirm that the defendant's license was suspended. While Sergeant Nethkin was running the defendant's driver's license, Detectives Hunt and Reames spoke with the defendant and asked whether there was anything in his truck that they needed to know about. They also asked for consent to search his truck, which the defendant denied.
Once the license suspension information was verified, the defendant was placed under arrest for driving with a suspended license. Because the defendant's driver's license had been suspended, he was unable to drive his truck away from the scene, and no one else was present to drive the truck for him. According to Sergeant Nethkin, when someone is unable to remove a vehicle from a scene as a result of arrest, that vehicle is required to be towed. As per department policy, a towed vehicle is required to be inventoried. Sergeant Nethkin assigned Deputy Lee to conduct the actual inventory of the truck, and the two detectives assisted. During the inventory, the officers discovered a cut-down rifle on the rear passenger's seat. Detective Reames found what appeared to be methamphetamine residue in the truck's ashtray as well as a syringe near the center console of the vehicle. Upon contacting dispatch, the officers learned that the defendant was a convicted felon. Detectives Hunt and Reames testified that they were familiar with the defendant's name, as he had been anonymously reported numerous times as being involved in narcotic activity and selling methamphetamine. Detective Reames also located two locked backpacks. Because the defendant refused to open them, the detective applied for a search warrant. No illegal items were located in the backpacks. The detective explained that it is policy to inventory every vehicle that is going to be towed and that a vehicle will generally be towed when its driver is arrested and has no passenger present to drive the vehicle away.
Detective Hunt also testified generally about the department policy regarding an inventory search. He stated that because the defendant was placed under arrest, the vehicle was going to be towed. Department procedure dictates that the inventory search should take place before the vehicle is actually towed. Detective Hunt stated that in this case, there was no one else present to drive the vehicle, and the defendant could not make contact with someone to remove the vehicle in a "feasible amount of time." He testified that the owner of the vehicle was discovered to be a woman by the name of Susan Boudreaux who lived in St. Amant. Detective Hunt stated that the officers requested a search warrant once they discovered the gun. The detective was unsure whether the tow truck had been called before the inventory or after. He further stated that it would have been unsafe to leave the vehicle at the carwash due to the rash of burglaries.
At the conclusion of the hearing on the motion to suppress, the district court ruled:
It doesn't appear that the vehicle would have been safe at that site since it was already under surveillance for possible burglaries. It does appear that their procedures were followed regarding the impoundment. Regarding whether arrangements could have been made, it seems like maybe it was lost by both the prosecution and defense. From what I understand from the testimony it was 2:00 in the morning, I don't think it's very likely arrangements are going to be made at 2:00 in the morning by someone else to get the vehicle. Again, making it more likely to be towed. I don't remember there being any testimony or asked whether the driver was asked if he could even get someone else or not. So based on all those factors, it does appear that the inventory is valid and I deny motion to suppress.
MOTION TO SUPPRESS
In four related assignments of error, the defendant contends that the inventory search of his vehicle was invalid. Specifically, the defendant argues that the district court erred in ruling: (1) the truck could not have remained safely at a well-lit place of business without any testimony that crimes had occurred at this particular business; (2) there was no testimony as to whether the defendant was asked if alternative arrangements in lieu of towing could have been made; (3) impoundment and inventory were justified where officers could have avoided liability for the contents of the vehicle, which was not a roadside or public hazard; and (4) due to the fact that officers followed department protocol, the search was valid.
The defendant also takes issue with the initial stop and the officers' alleged failure to administer Miranda warnings at the time of the initial stop. However, these issues were not raised in the defendant's motion to suppress and have been raised for the first time on appeal. La. Code Crim. P. art. 703F. It is well settled that a new basis or ground for the motion to suppress cannot be articulated for the first time on appeal. The articulation on appeal of a new basis or ground for suppression is prohibited under the provisions of Louisiana Code of Criminal Procedure article 841A, as the district court would not be afforded an opportunity to consider the merits of the particular claim. See
The Fourth Amendment to the United States Constitution and Article I, § 5, of the Louisiana Constitution prohibit unreasonable searches and seizures. A warrantless search is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Both the United States Supreme Court and the Louisiana Supreme Court have recognized a true inventory search to be an exception to the warrant requirement. State v. Brumfield, 560 So.2d 534, 536 (La. App. 1st Cir.), writ denied, 565 So.2d 942 (La. 1990).
The justification for an inventory search is ostensibly to protect the occupant against loss of his property or to protect the law enforcement agency against the occupant's claim for failure to guard against such a loss. A valid inventory search is conducted not on probable cause to secure evidence, but merely to inventory the vehicle's contents in order to safeguard them, as an incident to the vehicle's necessarily being taken into lawful police custody. Id.
Because the inventory search is a narrow exception to the requirement of a warrant and the requirement of probable cause, it must be strictly limited to these practical purposes for which it is justified. State v. Killcrease, 379 So.2d 737, 739 (La. 1980). An inventory search may not be used as a subterfuge for rummaging through the arrestee's vehicle without a warrant for the primary purpose of seizing evidence. Brumfield, 560 So.2d at 536. To fall within the inventory exception, however, the State must prove that the impoundment of the defendant's vehicle was necessary and that the inventory of the vehicle's contents was necessary and reasonable in its scope. State v. Crosby, 403 So.2d 1217, 1219 (La. 1981). Inventory searches that take place at the place of arrest rather than at the place of impoundment are suspect and have frequently been found to be a subterfuge for a search for evidence. See Killcrease, 379 So.2d at 739. Factors that are significant in determining whether a so-called "inventory search" was a subterfuge for a warrantless search without probable cause are:
(1) the vehicle could not have remained safely at or near the place it was stopped; (2) the search was not conducted in the field; (3) the tow truck was called before the search commenced; (4) formal impoundment procedures were followed; (5) the vehicle operator was asked if he consented to a search, if the car contained valuables, or if he would consent to the agency's failure to afford him the protection of an inventory search; (6) arrangements were made for someone designated by the operator to take possession or protective custody of the vehicle for him.Brumfield, 560 So.2d at 536-37.
The absence of a few of the elements to be considered in evaluating whether a true inventory search was conducted should not necessarily invalidate the search; rather, it is the totality of the circumstances and the true purpose of the inventory that determines the issue. See State v. Cousin, 96-2035 (La. App. 1st Cir. 9/23/97), 700 So.2d 1016, 1019, writ denied, 97-2809 (La. 3/13/98), 712 So.2d 875; see also Brumfield, 560 So.2d at 537. At the motion to suppress hearing, the State had the burden of establishing the admissibility of the evidence seized without a warrant. La. Code Crim. P. art. 703D.
A district court's ruling on a motion to suppress the evidence is entitled to great weight because the court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Lowery, 2004-0802 (La. App. 1st Cir. 12/17/04), 890 So.2d 711, 718, writ denied, 2005-0447 (La. 5/13/05), 902 So.2d 1018. Correspondingly, when a district court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the district court's discretion, i.e., unless such ruling is not adequately supported by reliable evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81. However, a district court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751.
The defendant argues that Killcrease, State v. Hardy, 384 So.2d 432 (La. 1980), and State v. Griffin, 2007-0974 (La. App. 1st Cir. 2/8/08), 984 So.2d 97, require suppression. In Killcrease, the Louisiana Supreme Court found an invalid inventory search where officers failed to ask for consent to search the defendant's vehicle, and the defendant testified that the officers refused his request to call his wife, who was three miles down the road, and ask her to come and get the vehicle. An officer testified that he did not remember the request, but if it were made, it would not have been granted. Killcrease, 379 So.2d at 739. In Griffin, this Court found that the inventory search of the defendant's vehicle was actually a pretext to search for illegal drugs, noting that there was no indication in the record that the vehicle could not have remained safely at the place where it was stopped (in front of the door of a gas station), and there was no evidence that the defendant was asked whether he consented to the search. Griffin, 984 So.2d at 110-11. In Hardy, the Louisiana Supreme Court found the inventory search of the defendant's vehicle, which was parked near the front of his home, to be invalid, noting there was no necessity to impound the vehicle considering its location and the probability of the defendant's making bond on a misdemeanor charge. Additionally, the defendant in Hardy was not asked for consent to search his vehicle or whether alternative arrangements for the car were available, formal impoundment procedures were not followed, and the search was conducted in the field without asking whether any valuables were in the automobile and before a tow truck was even called. Hardy, 384 So.2d at 434-35. In contrast, in the instant case, the defendant was asked whether he would consent to the search and there was testimony that formal impoundment procedures were followed. Additionally, there was no testimony that the defendant named anyone who would be able to retrieve the vehicle during those early-morning hours, and in light of the recent burglaries in the area, the vehicle may not have remained safely parked at the car wash.
Considering the totality of the circumstances, the district court did not err in concluding that the inventory search was valid. Although the search was conducted in the field and there is no indication that the defendant was asked whether he would consent to the agency's failure to afford him the protection of an inventory search, there was testimony that formal impoundment procedures were followed, and the defendant was asked whether he consented to a search. There was also testimony that the vehicle could not have remained safely in the area because of the string of recent burglaries. Further, no passengers were present at the scene, and the testimony established that no one could have been found in a "feasible amount of time," given the late hour. See Brumfield, 560 So.2d 536-37. Based on the foregoing, we find no error in this district court's denial of the motion to suppress. Accordingly, these assignments of error are without merit.
CONCLUSION
Therefore, for all of the reasons set forth herein, we affirm the defendant's conviction and sentence of defendant.
CONVICTION AND SENTENCE AFFIRMED.
State v. Cressy, 440 So.2d 141, 142-43 (La. 1983). Thus, the defendant herein is precluded from raising these issues.