Opinion
NUMBER 2014 KA 0252
09-19-2014
STATE OF LOUISIANA v. JAMAL ROBERTSON
Walter P. Reed, D.A. Covington, LA and Kathryn Landry Special Appeals Counsel Baton Rouge, LA Attorneys for Appellee State of Louisiana Timothy T. Yazbeck New Orleans, LA Attorney for Appellant Defendant - Jamal Robertson
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court
In and for the Parish of St. Tammany, Louisiana
Trial Court Number 540,643
Honorable Martin E. Coady, Judge Walter P. Reed, D.A.
Covington, LA
and
Kathryn Landry
Special Appeals Counsel
Baton Rouge, LA
Attorneys for Appellee
State of Louisiana
Timothy T. Yazbeck
New Orleans, LA
Attorney for Appellant
Defendant - Jamal Robertson
BEFORE: KUHN, PETTIGREW, AND WELCH, JJ.
WELCH, J.
Defendant, Jamal Robertson, was charged by an amended bill of information with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count one); possession with intent to distribute a Schedule II controlled dangerous substance (cocaine), a violation of La. R.S. 40:967(A)(1) (count two); possession of a Schedule III controlled dangerous substance (hydrocodone), a violation of La. R.S. 40:968(C) (count three); disguising transactions involving drug proceeds, a violation of La. R.S. 40:1041(A) (count four); and third-offense possession of marijuana, a violation of La. R.S. 40:966(C) and (E)(5) (count five). He initially pled not guilty and filed a motion to suppress the evidence against him. Following the trial court's denial of his motion to suppress, defendant withdrew his earlier pleas of not guilty, and he pled guilty as charged to all offenses. He entered these pleas under State v. Crosby, 338 So.2d 584 (La. 1976), reserving his right to appeal the trial court's denial of his motion to suppress. On count one, the trial court sentenced defendant to fifteen years at hard labor, without benefit of parole, probation, or suspension of sentence. On count two, the trial court sentenced defendant to fifteen years at hard labor, with the first two years imposed without benefit of parole, probation, or suspension of sentence. On each of counts three, four, and five, the trial court sentenced defendant to five years at hard labor. The trial court ordered all sentences to run concurrently. Defendant now appeals, alleging one assignment of error regarding the trial court's denial of his motion to suppress. For the following reasons, we affirm all of the defendant's convictions, and we affirm his sentences on counts two, three, four and five. We also amend the defendant's sentence on count one and affirm that sentence as amended.
FACTS
Because defendant pled guilty, the facts of his offenses were not fully developed at trial. The facts adduced at defendant's motion to suppress hearing indicate that, in August 2013, St. Tammany Parish Sheriff's Office (STPSO) Detective Jason Prieto received a tip concerning defendant's involvement in trafficking narcotics at the J & K Apartments in Slidell. STPSO Detective Brad Stephens made contact with a woman, Ashley Hawkins, who was present in defendant's apartment. Detective Stephens asked Hawkins for identification, and he followed her inside the apartment as she went to retrieve it. When he entered the apartment, Detective Stephens observed in plain view a substance appearing to be marijuana on top of a digital scale, which itself sat atop a microwave. Based upon this observation, the detectives secured a search warrant for defendant's apartment, leading to the discovery of evidence relevant to the other offenses with which defendant was charged.
ASSIGNMENT OF ERROR
In his sole assignment of error, defendant contends that the trial court erred in denying his motion to suppress. Specifically, defendant argues that the police erred in accepting Hawkins's alleged consent to search his residence because she lacked common authority over the residence and because he was physically present and expressly refused to consent to the search.
On August 21, 2013, Detective Prieto received a Crimestoppers tip identifying defendant as an individual who was trafficking drugs at the J & K Apartments in Slidell. The tip described defendant's features, age, and vehicle, and it also identified the approximate times that trafficking took place. Prior to going to the J & K Apartments to do a knock-and-talk investigation of defendant, Detective Prieto researched his criminal background. Detective Prieto noted that defendant had numerous previous narcotics arrests and that he was currently on probation. He also discovered that defendant had reported to the Department of Probation and Parole that he lived in Apartment G of the J & K Apartments.
The facts elicited by the state at the suppression hearing indicate that the incident occurred on August 21, 2013. This date is also supported by the documentary evidence introduced at the hearing. However, for some unapparent reason, the bill of information was amended on the first day of the hearing to reflect that defendant's offenses actually occurred on August 16, 2013. In this opinion, we use the date of August 21, 2013.
With three other police officers, Detective Prieto traveled to the J & K Apartments. In the parking lot of the complex, the officers observed a van fitting the description of defendant's vehicle. Defendant was standing near the van. The officers approached defendant, identified themselves, and asked for his identification. Appearing nervous, defendant looked in the van but then reported to the officers that he could not find his identification. Detective Prieto asked defendant which apartment he lived in, and defendant pointed to Apartment B, an apartment in the building across the courtyard from Apartment G. The officers followed defendant to Apartment B, but they found the door locked, and defendant had no key. Defendant became increasingly nervous, and he told the officers that his brother actually lived in the apartment. Detective Prieto then instructed Detective Stephens and Detective Shane Bennett to go to Apartment G. Detective Stephens knocked on the door of Apartment G, and Ashley Hawkins answered the door. As Hawkins opened the door, a small child ran out to defendant, calling him, "Daddy."
Detectives Stephens and Bennett made contact with Hawkins and asked her whether defendant lived there; she replied affirmatively. The detectives also asked for her identification. Detective Stephens testified at the suppression hearing that, when Hawkins indicated her identification was in the apartment, he asked if they could follow her inside to retrieve it. Detective Stephens stated that Hawkins said yes. Detective Stephens noted at the hearing that he was concerned Hawkins might retrieve a weapon. Detective Stephens also testified that he detected an odor of marijuana as soon as Hawkins answered the front door. Detective Stephens followed Hawkins inside the apartment and into the kitchen. There, he observed a small amount of suspected marijuana and a digital scale on top of a microwave, in plain view.
After he observed the suspected marijuana, Detective Stephens instructed Detective Bennett to remain with Hawkins while he informed Detective Prieto of his observation. Detective Prieto escorted defendant to an area just outside the apartment where he had Hawkins detained. Detective Prieto informed defendant and Hawkins of their Miranda rights and asked for consent to search the apartment. Only at that time did defendant express that he denied consent to search his apartment. Detective Prieto sent two officers back into the apartment for a protective sweep to make sure no individuals remained inside, but no evidence was actually seized during that sweep. Detective Prieto noted at the hearing that defendant was very vocal about not consenting to the sweep. Eventually, Detective Prieto secured a search warrant based upon the contents of the Crimestoppers tip and Detective Stephens's observation of the suspected marijuana. Pursuant to that search warrant, the police recovered evidence serving as the basis for defendant's instant offenses. Only during their subsequent investigation did the officers learn that Hawkins actually lived in Baton Rouge and that she was just visiting defendant.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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Initially, we note that all of the evidence was actually seized pursuant to a search warrant. However, defendant argues that Detective Stephens made entry into his apartment without valid consent, thereby tainting the information that formed the basis of that warrant. Therefore, we address first whether Detective Stephens's discovery of the suspected marijuana was made pursuant to a valid exception to the search warrant requirement.
On the trial of a motion to suppress, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of any evidence seized without a warrant. La. C.Cr.P. art. 703(D). A search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions. State v. Aucoin, 613 So.2d 206, 208 (La. App. 1st Cir. 1992).
We note that the actual search and subsequent seizures of evidence in this case were made pursuant to a search warrant. However, the officers' initial entry into defendant's apartment was made in absence of a search warrant, and observations from that entry were used in the affidavit supporting the issuance of the search warrant. Therefore, we evaluate that initial entry as though it were a "search."
Clearly, at the time Detective Stephens and Detective Bennett initially entered defendant's apartment, Detective Stephens did not have a warrant. However, one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent. Consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. State v. Brumfield, 2005-2500 (La. App. 1st Cir. 9/20/06), 944 So.2d 588, 593, writ denied, 2007-0213 (La. 9/28/07), 964 So.2d 353.
When the state seeks to rely upon consent to justify a warrantless search, it has the burden of proving that the consent was freely and voluntarily given. Whether consent was voluntarily given is an issue of fact to be determined by the fact finder in light of the totality of the circumstances. The trier of fact may consider the credibility of witnesses, as well as the surrounding circumstances, in determining the issue of the voluntariness. Aucoin, 613 So.2d at 208-09. 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 supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81; State v. Letell, 2012-0180 (La. App. 1st Cir. 10/25/12), 103 So.3d 1129, 1147, writ denied, 2012-2533 (La. 4/26/13), 112 So.3d 838. However, a district court's legal findings are subject to a de novo standard of review. See Letell, 103 So.3d at 1147.
Under the circumstances of this case, it is apparent that defendant never consented to the officers entering his apartment. However, despite the claims in his brief, there is nothing in the record to indicate that defendant refused to consent prior to when Detectives Stephens and Bennett made contact with Hawkins and secured her consent to enter the apartment. Thus, we must determine whether Hawkins could have legally consented to the detectives' entry into defendant's apartment.
Where the state seeks to justify a warrantless search by proof of voluntary consent, it may show that permission to search was obtained from a third party who possessed common authority over or sufficient relationship to the premises sought to be inspected. See U.S. v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974); Brumfield, 944 So.2d at 593. A warrantless search may also be valid if facts available to the officers at the time justified their reasonable, albeit erroneous, belief that the one consenting to the search had authority over the premises. See Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990); State v. Gettridge, 2008-0786 (La. 6/6/08), 987 So.2d 247, 247-48 (per curiam). However, a warrantless search of a shared dwelling over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident. See Georgia v. Randolph, 547 U.S. 103, 120, 126 S.Ct 1515, 1526, 164 L.Ed.2d 208 (2006).
Turning first to the Randolph issue, we note that while the record reflects that defendant was physically present when the officers made contact with Hawkins and then entered his apartment, it does not indicate that defendant expressly refused his consent for the officers to enter the apartment at that time. Instead, defendant's only refusal of consent appears to have occurred after the discovery of the suspected marijuana, and subsequent to his detention. Therefore, Randolph offers no legal justification for the suppression of evidence.
The remaining question is whether Detectives Stephens and Bennett had a reasonable, albeit erroneous, belief that Hawkins had authority over the premises. The testimony of Detective Stephens, Detective Prieto, and Hawkins herself indicate that Hawkins was present inside defendant's apartment with defendant's two small daughters. The action of defendant's daughter—in running toward her father and yelling, "Daddy"—might have led Detectives Stephens and Bennett to believe that defendant had not been present in the apartment for some time. Further, according to Detective Stephens, Hawkins actually granted him permission to enter the apartment. These facts, taken together, reveal nothing to indicate that Hawkins could not have gone into the apartment at any time without defendant's permission. See State v. Wheeler, 2004-0953 (La. App. 4th Cir. 3/9/05), 899 So.2d 84, 92. Therefore, we conclude that Detectives Stephens and Bennett had a reasonable, albeit erroneous, belief that Hawkins had authority over the premises.
We note that, at the suppression hearing, Hawkins testified that she never actually gave the detectives her consent to enter the apartment and that they instead simply followed her when she went to retrieve her identification. Hawkins also testified that she left Baton Rouge and arrived at defendant's apartment early on the morning of the incident (August 21, 2013). However, she had previously signed a written statement reflecting that she actually arrived at defendant's apartment a night earlier. Hawkins explained to the trial court that this statement was coerced. Defense counsel called another witness, Isaiah Wells, in an attempt to corroborate Hawkins's testimony, but Wells ultimately testified that Hawkins left Baton Rouge for Slidell "in the afternoon." Detective Prieto's affidavit for the search warrant indicated that the officers arrived at the J & K Apartments at 12:57 p.m., making Wells's timetable impossible if the affidavit is to be believed. Based on these facts, the trial court might have concluded that Hawkins's testimony regarding her lack of consent was fabricated.
We also note that, even in the absence of valid consent, Detective Stephens would have had probable cause to enter and/or search the apartment when he detected the odor of marijuana as Hawkins opened the door. See State v. Seiler, 2012-0389 (La. 5/25/12), 89 So.3d 1159, 1160-61 (per curiam); State v. Jefferson, 2013-0703 (La. App. 4th Cir. 4/16/14), 140 So.3d 235, 242-43. Under either justification - valid consent or probable cause - Detective Stephens was in a place where he could lawfully be when he discovered the suspected marijuana, which was immediately identifiable as being contraband. See State v. Young, 2006-0234 (La. App. 1st Cir. 9/15/06), 943 So.2d 1118, 1122-23, writ denied, 2006-2488 (La. 5/4/07), 956 So.2d 606. Therefore, his discovery of this evidence was legal under the plain view doctrine, and his observations regarding it could lawfully be used in the affidavit for the search warrant. The execution of that warrant ultimately led to the seizure of all evidence relevant to defendant's offenses.
We recognize defendant's argument that he vehemently opposed the officers' subsequent entry into his apartment after he had been detained. However, we note that this entry was justifiable as a protective sweep. A protective sweep is not a full search of the premises, and it extends only to a cursory inspection of those spaces where a person may be found. See Maryland v. Buie, 494 U.S. 325, 335, 110 S.Ct. 1093, 1099, 108 L.Ed.2d 276 (1990); Brumfield, 944 So.2d at 597 n.10. Moreover, the testimony of the state's detectives established that all evidence was actually seized pursuant to the search warrant, and nothing in the record indicates that the protective sweep led to the discovery of additional evidence.
In sum, when Detectives Stephens and Bennett made entry into defendant's apartment, they could have done so under either of two justifications - the consent of Hawkins or probable cause due to the odor of marijuana. Further, defendant did not expressly refuse consent at the time the detectives entered his apartment. Once Detective Stephens was lawfully inside the apartment, he then observed contraband in plain view. That observation was then used in concert with information from the Crimestoppers tip to secure a valid search warrant. All evidence was ultimately seized pursuant to that warrant. 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. Other than the pre-warrant actions of the officers, which we have validated, defendant makes no argument as to why the evidence against him should be suppressed. Therefore, the trial court did not err or abuse its discretion in denying defendant's motion to suppress.
This assignment of error is without merit.
REVIEW FOR ERROR
Initially, we note that our review for error is pursuant to La. C.Cr.P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La. C.Cr.P. art. 920(2); see State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277. After a careful review of the record, we have found a sentencing error on count one.
For his conviction on count one of possession of a firearm by a convicted felon, the defendant was sentenced to fifteen years at hard labor, without benefit of parole, probation, or suspension of sentence. Whoever is found guilty of possession of a firearm by a convicted felon shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and shall be fined not less than one thousand dollars nor more than five thousand dollars. See La. R.S. 14:95.1(B). Here, the trial court failed to impose the mandatory fine, so the defendant's sentence on this count is illegally lenient.
An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. C.Cr.P. art. 882(A). A defendant in a criminal case does not have a constitutional or statutory right to an illegal sentence. See State v. Williams, 2000-1725 (La. 11/28/01), 800 So.2d 790, 797. Even though the state apparently acquiesced in this illegally lenient sentence and does not complain of this error, the Louisiana Supreme Court has stated that it will not ignore patent errors favorable to a defendant when the state does not complain about them. See State v. Campbell, 2003-3035 (La. 7/6/04), 877 So.2d 112, 116.
Therefore, we amend the defendant's sentence on count one to include the minimum possible, but mandatory, fine of one thousand dollars. We recognize that State v. Haynes, 2004-1893 (La. 12/10/04), 889 So.2d 224 (per curiam), generally requires a remand for resentencing if amendment of a defendant's sentence involves discretion. However, we find that Haynes is distinguishable from the instant case because we do not amend the defendant's sentence to include the maximum possible fine for his conviction on count one, as the appellate court did in that case. Instead, our imposition of the minimum, but mandatory, fine does not involve more than a ministerial correction of an illegally lenient sentence. Our amendment of defendant's sentence on count one to include this nondiscretionary fine does not constitute a due process violation because neither actual retaliation nor vindictiveness exists in this correction. See Williams, 800 So.2d at 798; accord State v. Gregoire, 2013-0751 (La. App. 1st Cir. 3/21/14), ___ So.3d ___.
CONCLUSION
For the foregoing reasons, the defendant's convictions are affirmed and the defendant's sentences on counts two, three, four, and five are affirmed. We also amend the defendant's sentence on count one to hereby impose the minimum fine of one thousand dollars and in all other respects, the defendant's sentence on count one remains the same. We affirm the defendant's sentence on count one as amended.
CONVICTIONS AFFIRMED; SENTENCES ON COUNTS TWO, THREE, FOUR, AND FIVE AFFIRMED; SENTENCE ON COUNT ONE AMENDED AND AS AMENDED IS AFFIRMED.