Opinion
No. 2010 KA 0649.
December 22, 2010.
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY, LOUISIANA TRIAL COURT NUMBER 470,111 HONORABLE WILLIAM J. CRAIN, JUDGE.
Walter P. Reed, District Attorney Covington, LA and Kathryn W. Landry, Asst. District Attorney Baton Rouge, LA, Attorneys for State — Appellee.
Marion B. Farmer, Covington, LA and Robert Glass New Orleans, LA, Attorneys for Defendant — Appellant Rani Cuevas.
BEFORE: CARTER, C.J., GAIDRY AND WELCH, JJ.
The defendant, Rani Cuevas, was charged by bill of information with attempted possession with intent to distribute MDMA, a violation of La.R.S. 40:979 and La.R.S. 40:966(A)(1) (Count 1); possession with intent to distribute marijuana, a violation of La.R.S. 40:966(A)(1) (Count 2); attempted possession with intent to distribute methamphetamine, a violation of La.R.S. 40:979 and La.R.S. 40:967(A)(1) (Count 3); possession with intent to distribute cocaine, a violation of La.R.S. 40:967(A)(1) (Count 4); and attempted possession with intent to distribute psilocybins, a violation of La.R.S. 40:979 and La.R.S. 40:966(A)(1) (Count 5). See La.R.S. 14:27(A). The defendant filed a motion to suppress the evidence, and following a hearing on the matter, the motion was denied. Thereafter, the defendant withdrew her prior pleas of not guilty and, at the Boykin hearing, entered a Crosby plea of guilty to all five counts, reserving her right to challenge the trial court's ruling on the motion to suppress. See State v. Crosby, 338 So.2d 584 (La. 1976). The defendant was sentenced as follows: on Count 1, she was sentenced to two years at hard labor; on Count 2, she was sentenced to fifteen years at hard labor and ordered to pay a $5,000 fine; thirteen years of the sentence were suspended; two years were to be served without benefit of probation, parole, or suspension of sentence, and upon release, the defendant was ordered to serve five years of supervised probation, subject to special conditions of probation; on Count 3, she was sentenced to two years at hard labor; on Count 4, she was sentenced to two years at hard labor; and on Count 5, she was sentenced to two years at hard labor. The sentences were ordered to run concurrently. The defendant now appeals, designating one assignment of error. We affirm the convictions and sentences.
The defendant filed a motion for leave to file a reply brief. We grant the motion.
FACTS
At the motion to suppress hearing on May 14, 2009, several law enforcement officers from Louisiana and Mississippi testified about the events surrounding the defendant's arrest and the subsequent application for and execution of several search warrants. Agent Brian Sullivan, with the Mississippi Bureau of Narcotics, testified that in July of 2008, he received information from a confidential informant that a female, later identified as the defendant, was delivering large quantities of marijuana to the residence of Cory Ladner in Pass Christian, Mississippi. Several days later, Agent Sullivan, along with other Mississippi law enforcement officers, initiated surveillance on Ladner's residence and observed the defendant leaving Ladner's residence in a vehicle with a Louisiana license plate. Officers followed the defendant to a Liberty Road residence in Slidell. James Impastato and his wife, Melissa Cuevas, the defendant's mother, lived at the Liberty Road residence. Impastato testified at the hearing that, while the defendant had a second floor bedroom at his home, she did not come around often. During the time the defendant was under surveillance, she was not, according to Impastato, living at the house on Liberty Road.
Days later, Mississippi officers again initiated surveillance on Ladner in Mississippi. Officers followed him from his home and conducted a traffic stop. They found marijuana in his vehicle. Ladner informed the officers that he was receiving marijuana in bulk, from one to four pounds, from the defendant. Ladner believed the defendant's source of the marijuana was Conrad Shelby, the defendant's boyfriend (co-defendant). Officers determined that Ladner could be used as an informant. Subsequently, Ladner communicated with the defendant through text messaging. The defendant agreed to sell several pounds of marijuana to Ladner.
The defendant's boyfriend was identified at the motion to suppress hearing as Conrad Shelby, who has also appealed in docket no. 2010KA0759, decided this day, raising the same issue as the defendant in her appeal. State v. Shelby, 2010-0759 (La. App. 1st Cir 12/22/01)( unpublished).
On July 2, 2008, the day of the arranged drug buy, Mississippi and Louisiana officers initiated surveillance on Slidell addresses that agents from Mississippi believed the defendant was residing at or frequented, namely residences on Garden Drive and Liberty Road. Officers observed the defendant and Shelby drive to the Garden Drive residence in a blue full-size Dodge Ram truck with an extended cab. They went inside. When they returned to the truck, the defendant had a book bag over her shoulder. Shelby was carrying a bundle of clothes. They then drove to the Liberty Road residence where they stayed for several minutes. From there, they drove to a gas station. They left the gas station and drove to a residence on CC Road where they stayed for several minutes. During this time when the defendant and Shelby were making these stops, the defendant and Ladner were text messaging each other. Ladner kept Agent Sullivan informed about the contents of the text messages. After the defendant and Shelby left the CC Road residence, the defendant texted Ladner that they were headed to Pass Christian, Mississippi to meet him (Ladner) at a gas station at the Kiln-Delise exit. Trooper Ron Whittaker, Jr., with the Louisiana State Police narcotics section, testified at the hearing that he conducted surveillance on the Liberty Road residence. Officers conducted a "trash pull" at that residence and found marijuana gleanings, paraphernalia, and gallon-sized vacuum-sealed bags.
Law enforcement agents followed the defendant and Shelby to Mississippi. Agent Sullivan contacted the Harrison County Sheriff's Department and asked them to stop the truck the defendant and Shelby were in when it entered Harrison County. Deputy Danny Gilkerson with the Harrison County Sheriff's Department observed the defendant pass him. Deputy Gilkerson followed the truck and saw it veer onto the shoulder of the road. Having observed a traffic violation, which provided him his own probable cause for stopping the truck, Deputy Gilkerson stopped the vehicle. Upon approaching the truck, Deputy Gilkerson smelled marijuana from the truck. He requested consent to search the truck, but the defendant and Shelby refused. A K-9 unit was brought to the scene. The dog alerted, and upon a search of the vehicle, officers found behind the driver's seat a cardboard box containing approximately three pounds of marijuana. The defendant and Shelby were arrested and Mirandized. Shelby was asked by an agent where he was coming from. Shelby responded he had come from his house, which was the residence on CC Road.
Louisiana police officers subsequently requested search warrants for the three residences where the defendant and Shelby were observed under surveillance stopping at before traveling to Mississippi with approximately three pounds of marijuana to sell. At the Liberty Road address, officers seized a large amount of narcotics and paraphernalia, including marijuana, cocaine, assorted prescription pills, hashish, mushrooms, vacuum-seal bags, smoking pipes, and a digital scale. At the Garden Drive address, officers seized a smoking pipe used for consumption of marijuana and vacuum-seal bags. At the CC Road address, officers seized a black suitcase filled with marijuana and $62,100.00 in cash inside a compact disc case near the suitcase.
ASSIGNMENT OF ERROR
In her sole assignment of error, the defendant argues that the trial court erred in denying her motion to suppress evidence seized from 32865 CC Road in Slidell. Specifically, the defendant contends that the search warrant affidavit did not establish probable cause, and further, that the search warrant cannot be saved by the Leon good-faith exception. The defendant is not attacking the validity of the Liberty Road address and Garden Drive address search warrants.
When a search and seizure of evidence is conducted pursuant to a search warrant, the defendant has the burden to prove the grounds of his motion to suppress. La.C.Cr.P. art. 703(D); State v. Hunter, 632 So.2d 786, 788 (La. App. 1st Cir. 1993), writ denied, 94-0752 (La. 6/17/94), 638 So.2d 1092. When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887, p. 11 (La. 5/22/95), 655 So.2d 272, 281. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589, p. 6 (La. 12/1/09), 25 So.3d 746, 751.
Article 1, § 5 of the Louisiana Constitution requires that a search warrant may issue only upon an affidavit establishing probable cause to the satisfaction of an impartial magistrate. La.C.Cr.P. art. 162. Probable cause exists when the facts and circumstances within the affiant's knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Johnson, 408 So.2d 1280, 1283 (La. 1982). The facts establishing the existence of probable cause for the warrant must be contained within the four corners of the affidavit. State v. Duncan, 420 So.2d 1105, 1108 (La. 1982); see State v. Green, 2002-1022, pp. 6-7 (La. 12/4/02), 831 So.2d 962, 969.
An issuing magistrate must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a "fair probability" that evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); State v. Byrd, 568 So.2d 554, 559 (La. 1990). The process of determining probable cause for the issuance of a search warrant does not involve certainties or proof beyond a reasonable doubt, or even a prima facie showing, but rather involves probabilities of human behavior, as understood by persons trained in law enforcement and as based on the totality of circumstances. The process simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system. State v. Rodrigue, 437 So.2d 830, 832-33 (La. 1983); see also Green, 2002-1022 at p. 7, 831 So.2d at 968.
The review of a magistrate's determination of probable cause prior to issuing a warrant is entitled to significant deference by reviewing courts. "[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review." Gates, 462 U.S. at 236, 103 S.Ct. at 2331. Further, because of "the preference to be accorded to warrants," marginal cases should be resolved in favor of a finding that the issuing magistrate's judgment was reasonable. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); Rodrigue, 437 So.2d at 833.
In the instant matter, the defendant contends that the CC Road address search warrant affidavit contained no information on ownership of that property, that the surveilling officers observed no activity independently warranting suspicion there, and there was no evidence that either the defendant or Shelby entered any of the buildings on CC Road. The defendant also maintains that agents had not on any prior occasion connected the CC Road address to the defendant.
We address first the defendant's connection to the CC Road address. Agent Sullivan testified at the motion to suppress hearing that the defendant and Shelby went to 32865 CC Road in Slidell and stayed there for several minutes before driving to Mississippi. While it is not clear whether they entered the house or the trailer on that property, it is clear they remained at the property for several minutes. The Liberty Road search warrant affidavit indicated that the defendant was selling "high grade" marijuana for approximately $4,700.00 a pound, that she had provided marijuana to subjects both in the Slidell area and in Mississippi, and that over the course of the past three months, she had been responsible for approximately $50,000.00 worth of marijuana being delivered to South Louisiana and Mississippi. Testimony at the hearing further established that Shelby lived at the CC Road residence and that Shelby was the defendant's boyfriend. Also, Ladner, who the defendant agreed to sell about three pounds of marijuana to, testified that he thought the defendant's source of the marijuana was Shelby, the defendant's boyfriend. As such, despite the defendant's contention, the defendant was clearly connected to the CC Road address.
The CC Road address search warrant describes the residence as follows: a single two story wooden residence set off of the roadway. A large white FEMA trailer is located east of the residence.
As indicated by the defendant in her brief, the CC Road address search warrant affidavit, as well as the search warrant, does not provide that Shelby lived at the CC Road address. This likely was an oversight on the part of Detective Scott Saigeon, the search warrant affiant. About two hours prior to Judge Elaine DiMiceli's signing the CC Road address search warrant, she signed the Liberty Road address search warrant, which indicated that Shelby's residence was on CC Road. The affiant of the Liberty Road address search warrant was Trooper Whittaker. It would appear, thus, that Judge DiMiceli was aware that Shelby lived at the CC Road residence when she signed the CC Road address search warrant. Nevertheless, even had Judge DiMiceli not known that Shelby lived at the CC Road residence, we would look to the testimony at the motion to suppress hearing, which established that Shelby resided at the CC Road address.
Normally, the law does not permit a reviewing court to go outside the four corners of a search warrant affidavit in reviewing a probable cause determination. However, when there are inadvertent material omissions, the court will look to outside evidence to support or destroy a probable cause finding. State v. Morris, 444 So.2d 1200, 1202 (La. 1984); see State v. Fugler, 97-1936, p. 25 (La. App. 1st Cir. 9/25/98), 721 So.2d 1, 20, amended in part on rehearing, 97-1936 (La. App. 1st Cir. 5/14/99), 737 So.2d 894, writ denied, 99-1686 (La. 11/19/99), 749 So.2d 668. Detective Saigeon included in his affidavit twenty paragraphs that address the workings of drug dealers and drug dealing in broad, general terms. In his brief, the defendant asserts that Detective Saigeon "was reduced to pumping up his meager offering with 20 paragraphs . . . of boilerplate descriptions that include generalizations so farfetched in their invocation of the drug world at large as to be absurd in our case."
We do not agree. In United States v. Webster, 960 F.2d 1301, 1307 (5th Cir.) (per curiam), cert. denied, 506 U.S. 927, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992), wherein a search warrant was upheld, the affidavit alleged that, based on the officer's experience, drug dealers and traffickers commonly keep caches of drugs, as well as paraphernalia and records of drug transactions, in their residences. Similarly, Detective Saigeon in the instant matter provided information regarding how drug dealers might use their homes, such as:
d. That it is common for narcotics traffickers to maintain books, records, receipts, notes, ledgers, airline tickets, receipts relating to the purchase of financial instruments and/or the transfer of funds, and other papers relating to the transportation, ordering, sale and distribution of controlled substances. That the aforementioned books, records, receipts, notes, ledgers, etc., are maintained where the traffickers have ready access to them;
e. That it is common for large-scale drug dealers to secrete [sic] contraband proceeds of drug sales and records of drug transactions in secure locations within their residences, their businesses and/or other locations which they maintain dominion and control over, for ready access and to conceal these items from law enforcement authorities;
f. That, in order to accomplish this concealment narcotics traffickers frequently build "stash" places within their residences or businesse
The addition of these paragraphs to the affidavit indicates that Detective Saigeon was aware that Shelby lived at the CC Road residence. A judge issuing a search warrant may infer that evidence is likely to be found where a drug dealer lives. See State v. Profit, 2000-1174, pp. 5-6 (La. 1/29/01), 778 So.2d 1127, 1130 (per curiam). Also, a sufficient nexus exists between marijuana seized from a vehicle and Shelby's residence to establish probable cause for a warrant to search the premises because "[a] residence is a quite convenient, commonly-used place for planning continuing criminal activities like large-scale marijuana trafficking and money laundering." Profit, 2000-1174 at p. 6, 778 So.2d at 1130 (quoting United States v. Robins, 978 F.2d 881, 892 (5th Cir. 1992)). Accordingly, we conclude that the information that Shelby lived at the CC Road address, which was not included in the affidavit, was a material omission.
Given the importance of the evidence that Shelby lived at the CC Road address, that such information had been provided in Trooper Whittaker's affidavit for the Liberty Road address, and that Detective Saigeon provided in his search warrant affidavit information on how drug dealers use their homes to maintain and secret records of drug transactions, we conclude that such an omission from Detective Saigeon's affidavit was inadvertent. Therefore, considering all of the information officers had, including that the defendant and Shelby were known drug dealers, Shelby lived at the CC Road address, and the CC Road address was the last place they visited before being arrested in Mississippi for transporting about three pounds of marijuana, we find there was probable cause to issue the CC Road address search warrant. See State v. Revere, 572 So.2d 117, 128 (La. App. 1st Cir. 1990), writ denied, 581 So.2d 703 (La. 1991).
While not dispositive of the probable cause issue, which has been resolved, we feel the following issue should be addressed. The defendant states in her brief, "It is reasonable to conclude that the decision to seek the CC Road warrant was an afterthought." According to the defendant, "When the searches of Garden Drive and Liberty Drive failed to produce a major trove of evidence the agents were hoping to discover, they seized on the idea of taking a shot at CC Road." We do not agree with this assessment of why CC Road was searched. The only information Detective Saigeon had at the time he applied for a search warrant was that the defendant and Shelby, after having left the CC Road residence, were arrested in Mississippi for drug possession. Neither the CC Road search warrant nor the affidavit makes any reference to any searches, or the products thereof, of the Liberty Road or Garden Drive residences. Further, Detective Saigeon testified on cross-examination at the motion to suppress hearing that the information he included in his CC Road search warrant affidavit had nothing to do with any evidence seized at either Liberty or Garden:
Q. Did anybody tell you that there was any evidence seized at either of those two locations?
A. Nobody did, and I wasn't present for either one of those search warrants. While those were occurring, I was preparing my affidavit.
Q. So, you're preparing your affidavit as they were actually searching those other two residents [sic]?
A. That's correct.
Q. So, nothing retrieved from those two residents [sic] caused you to believe that there was anything at the CC address?
A. No, sir; I wasn't present, that's correct.
Finally, we note that even had the CC Road address search warrant been based on less than probable cause, under the Leon good-faith exception, the evidence seized pursuant to that search warrant would not be suppressed. It is well settled that even when a search warrant is found to be deficient, the seized evidence may nevertheless be admissible under the good-faith exception of United States v. Leon, 468 U.S. 897, 919-20, 104 S.Ct. 3405, 3418-19, 82 L.Ed.2d 677 (1984), wherein the United States Supreme Court held the exclusionary rule should not be applied so as to bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in an objectively reasonable, good-faith reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid.
Under Leon, 468 U.S. at 923, 104 S.Ct. at 3421, four instances in which suppression remains an appropriate remedy are: (1) where the issuing magistrate was misled by information the affiant knew was false or would have known was false except for a reckless disregard for the truth; (2) where the issuing magistrate wholly abandoned his detached and neutral judicial role; (3) where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized-that the executing officers cannot reasonably presume it to be valid.
The instances in which suppression remains an appropriate remedy enunciated in Leon clearly reflect that suppression of evidence seized pursuant to an invalid warrant is not a remedy to be lightly considered. Furthermore, the jurisprudence presumes good faith on the part of the executing officer, and the defendant bears the burden of demonstrating the necessity for suppression of evidence by establishing a lack of good faith. State v. Maxwell, 2009-1359, p. 11 (La. App. 1st Cir. 5/10/10), 38 So.3d 1086, 1092, writ denied, 2010-1284 (La. 9/17/10), ___ So.3d
Applying these factors to this case, we find that even if the CC Road address search warrant was to be considered defective, the good-faith exception would apply. The defendant did not establish a lack of good faith on the part of the executing officer. There were no misleading statements contained in the affidavit. There was no evidence that Judge DiMiceli abandoned her neutral role in her issuance of the search warrant, nor was there anything on the face of the warrant that would make it so deficient that it could not be presumed valid. Detective Saigeon provided the judge information gathered by the surveillance efforts of Louisiana police officers and Mississippi narcotics agents. Detective Saigeon was not unreasonable in believing he provided the judge with sufficient information to issue a search warrant. Accordingly, suppression of the evidence would not be appropriate under the Leon good-faith exception to the exclusionary rule. See Maxwell, 2009-1359 at pp. 11-12, 38 So.3d at 1092.
The trial court did not err in denying the defendant's motion to suppress. The assignment of error is without merit.
CONCLUSION
For the foregoing reasons, the defendant's convictions and sentences are affirmed.