State of Louisiana Versus Carlos McKnight, Jr.

STATE OF LOUISIANA NO. 22-KA-499

VERSUS FIFTH CIRCUIT

CARLOS MCKNIGHT, JR. COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 21,213, DIVISION "C"
HONORABLE CONNIE M. AUCOIN, JUDGE PRESIDING

May 24, 2023

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and John J. Molaison, Jr.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING, WITH RESERVATION UNTO DEFENDANT TO
WITHDRAW GUILTY PLEA
JGG
FHW
JJM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Joel T. Chaisson, II
Louis G. Authement

COUNSEL FOR DEFENDANT/APPELLANT,
CARLOS MCKNIGHT, JR.
Katherine M. Franks

GRAVOIS, J.

After entering a guilty plea pursuant to State v. Crosby,1 defendant, Carlos

McKnight, Jr., has appealed the denial of his “Motion to Suppress Evidence.” For

the following reasons, we affirm defendant’s conviction, vacate defendant’s

sentence, and remand the matter to the trial court for resentencing, reserving unto

defendant the right to withdraw his guilty plea.

PROCEDURAL HISTORY

On May 10, 2021, the St. Charles Parish District Attorney filed a bill of

information charging defendant, Carlos McKnight, Jr., with possession with the

intent to distribute marijuana, in violation of La. R.S. 40:966(A)(2). On May 18,

2021, defendant pled not guilty.

On July 13, 2021, defendant filed a “Motion to Suppress Evidence.” On

May 3, 2022, the motion was denied following a hearing. On June 21, 2022,

defendant withdrew his plea of not guilty, and after being advised of his Boykin2

rights, pled guilty as charged pursuant to State v. Crosby, supra, reserving his right

to challenge the denial of his “Motion to Suppress Evidence.” That same day,

defendant was sentenced to “five years with the Department of Corrections,

deferred, under Article 893; three years active probation” with the following

special conditions: contact his probation officer within forty-eight hours of

sentencing, comply with the general conditions of probation set forth in La. C.Cr.P.

art. 895, undergo a substance abuse evaluation, and follow any and all

recommendations for treatment. The judge imposed a five hundred dollar fine to

be paid by June 21, 2023, and “court costs through the St. Charles Sheriff’s

Office.” The judge further ordered defendant to pay a three hundred fifty dollar

reimbursement to the Public Defender Office to be paid by June 21, 2023, and a

1
State v. Crosby, 338 So.2d 584 (La. 1976).
2
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

22-KA-499 1

monthly supervision fee of fifty dollars. Defendant was also sentenced to three

days in the parish prison with credit for time served. On July 15, 2022, defendant

filed a “Motion For Appeal Pursuant to State v. Crosby,” which was granted on

July 21, 2022. Defendant now challenges the denial of his “Motion to Suppress

Evidence.”

On appeal, defendant argues that the trial judge erred in denying the defense

Motion to Suppress, both the search of defendant’s automobile and the statements

he gave to the officers following his alleged illegal arrest. He avers that his arrest

was illegal as it lacked probable cause and that he should have been issued a

summons instead. He asserts that the statement and search of the vehicle were

products of an illegal arrest and therefore fruits of the poisonous tree. As such, he

contends that the Motion to Suppress should have been granted.

The State avers that defendant’s detention was justified and that the smell of

marijuana provided probable cause for the warrantless search of the vehicle. The

State opines that this probable cause increased when defendant gave the officer a

container of marijuana. The State contends that the officer should not have been

limited to issuing a summons when the officer smelled a “felony level of

marijuana.” It asserts that the scope of the vehicle search was justified. The State

provides that defendant, his girlfriend, and the occupant of the other vehicle were

all advised of their rights. The State concludes that the court did not err in denying

the defense Motion to Suppress.

ASSIGNMENT OF ERROR

DENIAL OF MOTION TO SUPPRESS

On July 13, 2021, defendant filed a “Motion to Suppress Evidence.” In the

motion, he asked the judge to suppress the evidence, whether the evidence is

“physical or any form of statement or confession, particularly the alleged

marijuana, and any other items seized from the defendant in this matter … as the

22-KA-499 2

result of an unlawful search, without a warrant, without any valid exception to the

requirement of warrant and without probable cause.” On May 3, 2022, a hearing

was held on the motion. At the hearing, defense counsel clarified that she sought

to suppress a scale, a backpack, and any statements made by defendant based on an

illegal and unconstitutional stop.

Facts

Deputy Adam Coley with the St. Charles Parish Sheriff’s Office testified

that on April 20, 2021 at around 10:30 p.m. while on patrol, he went to the

construction site of a park in the St. Rose area in St. Charles Parish. That time of

night was past the closing time of parks in the area. Deputy Coley acknowledged

that he was not dispatched there and that the park was a public place. He explained

that the location was secluded and that there was only one way in and out. The

area had a parking lot and basketball courts that were already built.

Deputy Coley observed two parked cars there. One person, later identified

as Oliver Aguillard, was outside of one of the vehicles, and defendant and his

girlfriend, Nila Cambre, were inside the other vehicle. Deputy Coley stated it was

clear that the people he saw at the park were not engaged in construction. As such,

he found that there was suspicious behavior to warrant further investigation. He

acknowledged that he did not observe an exchange of anything between the

individuals. He then activated the lights on his police car to alert the people there

that he was law enforcement and to not alarm them. He approached the people and

asked what they were doing in that area at that time of night. They replied that

they were just talking. As he approached the vehicle defendant was in, Deputy

Coley “smelled green marijuana” coming through the open passenger window. He

clarified that he meant raw, unsmoked marijuana.

When Deputy Coley was talking to the individuals, defendant was seated in

the front passenger area of the vehicle with a backpack between his feet. Deputy

22-KA-499 3

Coley obtained identification from the three individuals and asked who had

marijuana. Defendant replied that he had a small amount and handed Deputy

Coley a cigar packet containing “two flowers,” a total of approximately two grams,

of marijuana. Deputy Coley removed one of the “flowers” and asked how much it

was worth. Defendant told him that it was worth approximately $10. Deputy

Coley put the “flower” aside and another deputy arrived.3 The three people on the

scene were separated and detained. Deputy Coley explained that they were

detained because of the location of the incident and the strong odor of marijuana.

Defendant was removed from the vehicle, handcuffed, and placed inside the police

unit. Deputy Coley acknowledged that at that time, defendant was only detained

and was not under arrest.

Deputy Coley then searched Ms. Cambre’s vehicle without a warrant or

consent.4 He testified that there was no contraband or weapon in plain view.

However, on the front passenger floorboard, he found a backpack5 with a jar

containing approximately twenty grams of marijuana, a bag with an additional

small quantity of marijuana, several Dixie cups with traces of marijuana inside,

and some torn bags that he indicated were a common way to package small

quantities of marijuana for sale. Approximately 25.3 grams of marijuana were

recovered from the backpack. Inside the unlocked center console, there was a

digital scale with traces of marijuana on the scale plate. Deputy Coley observed

that the scale was turned “on,” and that because these devices typically have an

automatic “off” feature, it appeared that the scale had recently been used. The total

3
Officer Alexis Agnelly served as a backup unit at the park under construction on April
20, 2021. When she arrived, three individuals were already detained. Sergeant Andrew Peyton
also responded as a backup unit. He recalled that Deputy Coley put out a call that he was at the
park with two vehicles with multiple occupants. Neither Officer Agnelly, nor Sergeant Peyton
testified to seeing Deputy Coley search the vehicle.
4
Deputy Coley acknowledged that defendant was not the driver and that the vehicle was
not registered to defendant.
5
The deputy did not have consent or a warrant to search the backpack.

22-KA-499 4

aggregate amount of marijuana recovered from the scene was approximately 27.3

grams.

Deputy Coley advised defendant of his Miranda6 rights. After waiving

those rights, defendant told the deputy that he was “slinging”7 marijuana and

claimed ownership of the items found in the vehicle. Deputy Coley also spoke to

Ms. Cambre and advised her of her rights. Ms. Cambre admitted that defendant

possessed marijuana and she knew that he sold it. Ms. Cambre explained that she

picked defendant up from his house and drove him to the construction site/park.

Mr. Aguillard also admitted that he knew defendant sold and smoked marijuana.

After Deputy Coley testified, the trial judge denied the Motion to Suppress,

finding that there was probable cause to search the vehicle, that the statements

were legally obtained, and that the advice of rights was given to defendant with

respect to the second statement. Defense counsel noticed her intent to seek a writ.

Although it does not appear that defendant sought a writ on the matter with this

Court, he filed the instant appeal wherein he challenges the suppression ruling and

focuses on his arrest.

Analysis

The Fourth Amendment to the United States Constitution and Article I, § 5

of the Louisiana Constitution prohibit unreasonable searches and seizures. State v.

Gray, 06-298 (La. App. 5 Cir. 10/31/06), 945 So.2d 798, 801, writ denied, 06-2958

(La. 9/14/07), 963 So.2d 993. However, law enforcement officers are authorized

by La. C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to conduct

investigatory stops, which allow officers to stop and interrogate a person who is

6
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The advice
of rights form was executed at 2:30 a.m.
7
Deputy Coley explained that “slinging” is a slang term for selling illicit drugs.

22-KA-499 5

reasonably suspected of criminal activity. Id., citing Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968).

“Reasonable suspicion” to stop is something less than probable cause and is

determined under the facts and circumstances of each case by whether the officer

had sufficient facts within his knowledge to justify an infringement on the

individual’s right to be free from governmental interference. State v. Taylor, 12-25

(La. App. 5 Cir. 6/28/12), 97 So.3d 522, 529. Police do not have to observe what

they know to be criminal behavior before investigating. Instead, the requirement is

that the officers have a reasonable suspicion of criminal activity. State v. Morales,

12-454 (La. App. 5 Cir. 12/18/12), 125 So.3d 1141, 1146. Evidence derived from

an unreasonable stop will be excluded from trial. Taylor, supra.

The determination of reasonable grounds for an investigatory stop does not

rest on the officer’s subjective beliefs or attitudes, but is dependent on an objective

evaluation of all the circumstances known to the officer at the time of his

challenged action. State v. Sierra, 11-161 (La. App. 5 Cir. 12/28/11), 83 So.3d

239, 246. In considering whether the officer acted reasonably in such

circumstances, due weight must be given, not to his inchoate and unparticularized

suspicion or hunch, but to the specific reasonable inferences that he is entitled to

draw from the facts in light of his experience. State v. Gross, 14-110 (La. App. 5

Cir. 6/24/14), 145 So.3d 521, 527-28, writ denied, 14-1516 (La. 2/27/15), 159

So.3d 1065.

A reviewing court must take into account the totality of the circumstances,

giving deference to the inferences and deductions of a trained police officer that

might elude an untrained person. An officer’s experience, his knowledge of recent

criminal patterns, and his knowledge of an area’s frequent incidence of crimes are

factors that may support reasonable suspicion for an investigatory stop. State v.

Gibson, 12-350 (La. App. 5 Cir. 10/30/12), 103 So.3d 641, 649.

22-KA-499 6

An arrest occurs when the circumstances indicate an intent to effect an

extended restraint on the liberty of the accused, rather than at the precise time an

officer tells an accused he is under arrest. State v. Graham, 01-1232 (La. App. 5

Cir. 5/29/02), 820 So.2d 1101, 1106, writ denied, 02-1770 (La. 12/19/02), 833

So.2d 329. Probable cause to arrest exists when facts and circumstances within an

officer’s knowledge, and of which he has reasonable, trustworthy information, are

sufficient to justify a man of average caution in believing that the person to be

arrested has committed a crime. State v. Trepagnier, 07-749 (La. App. 5 Cir.

3/11/08), 982 So.2d 185, 192, writ denied, 08-784 (La. 10/24/08), 992 So.2d 1033.

The plain view doctrine renders a warrantless search reasonable: (1) if the

police officer is lawfully in the place from which he views the object; (2) where the

object’s incriminating character is immediately apparent; and (3) the officer has a

lawful right of access to the object. State v. Miguel, 18-711 (La. 1/30/19), 263

So.3d 873, 874. The plain smell exception is an extension of the plain view

exception. State v. Gray, 13-1326 (La. 6/28/13), 122 So.3d 531, 533.

The Fourth Amendment permits an automobile search if probable cause

exists to believe it contains contraband or evidence of a crime. State v. Jackson,

20-124 (La. 1/31/20), 289 So.3d 45, 46. The scope of the warrantless search of an

automobile is not defined by the nature of the container in which the contraband is

secreted, but rather, is defined by the object of the search and the place in which

there is probable cause to believe it may be found. State v. Tatum, 466 So.2d 29,

31 (La. 1985), citing U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572

(1982).

Courts, including this Court, have consistently held that the odor of

marijuana provided the officers with sufficient probable cause to conduct

warrantless searches of vehicles. State v. Brown, 17-420 (La. App. 5 Cir. 2/21/18),

239 So.3d 455, 462, writ denied, 18-480 (La. 1/18/19), 262 So.3d 281. Probable

22-KA-499 7

cause exists when the totality of circumstances gives rise to a “fair probability” that

contraband or evidence of a crime will be found in a particular place. Jackson, 289

So.3d at 46.

In a hearing on a motion to suppress, the State bears the burden of proving

the admissibility of a purported confession or statement by the defendant and of

any evidence seized without a warrant. La. C.Cr.P. art. 703(D); State v. Dufrene,

12-716 (La. App. 5 Cir. 4/10/13), 115 So.3d 22, 24. A trial court is afforded great

discretion when ruling on a motion to suppress and its ruling will not be disturbed

absent an abuse of that discretion. State v. Smith, 19-395 (La. App. 5 Cir. 3/13/20),

293 So.3d 732, 741.

In State v. Lacrosse, 19-599 (La. App. 5 Cir. 1/7/20), 2020 WL 88838, this

Court reversed the trial judge’s granting of a motion to suppress evidence. The

evidence at the suppression hearing reflected that the officer conducted a valid

traffic stop. After coming to a stop in a driveway, the defendant exited his vehicle

and closed the door, at which point the officer detected the odor of marijuana. This

smell of fresh marijuana provided the officer with sufficient probable cause to

conduct a warrantless search of the vehicle. As the officer conducted the lawful

search, the smell of the marijuana grew stronger as he neared the trunk. Id. at *4.

On appeal, defendant’s argument focuses more on whether his arrest was

illegal. He argues that it was illegal, and therefore, the subsequent statement and

evidence should have been suppressed. We disagree.

Upon review, we find that Deputy Coley did not need reasonable suspicion

to approach the three individuals in a closed public park under construction and ask

a few questions. Although reasonable suspicion is required for a police officer to

stop an individual, it is not required every time an officer approaches a citizen in a

public place. Police officers possess the same right as any citizen to approach an

individual and ask a few questions. State v. Turner, 08-1188 (La. App. 5 Cir.

22-KA-499 8

5/12/09), 13 So.3d 695, 699, writ denied sub nom., State ex rel. Turner v. State, 09-

2100 (La. 8/18/10), 42 So.3d 400. A police officer’s action of merely approaching

an individual does not implicate the protections of the Fourth Amendment.

Morales, 125 So.3d at 1147. Police officers remain free to approach any citizen to

ask him a few questions “as long as [they] do not convey a message that

compliance with their requests is required.” Gray, supra.

Nevertheless, in the present case, we find that there was reasonable

suspicion to stop defendant. Deputy Coley approached the small group of people

in a park under construction at night and smelled marijuana. He explained that the

area was secluded and that there was only one way to enter or exit. After the initial

approach, there were additional circumstances to justify defendant’s detention.

After Deputy Coley smelled the marijuana and asked who had it, defendant

produced approximately two grams of marijuana. Defendant argues in part that the

initial two grams of marijuana justified defendant only being issued a summons,

rather than being arrested. However, this argument is without merit in light of

State v. Jackson, 18-1135 (La. 11/20/18), 257 So.3d 179.

In Jackson, 257 So.3d at 180, officers approached a group of people that

included the defendant on a sidewalk at night in a high-crime area because the

group strongly smelled of burning marijuana. The Louisiana Supreme Court

indicated that this gave the officers reasonable suspicion to conduct a brief

investigatory stop. The court stated that under the totality of the circumstances, the

officers also had a reasonable, objective, and particularized basis for conducting a

pat-down frisk of the defendant. Before the pat-down was completed, the

defendant stated that he had a bag of marijuana and produced it for the officers.

The defendant was then arrested, and a search incident to arrest revealed

individually packaged heroin and a digital scale. Id.

22-KA-499 9

In Jackson, the district court granted the defendant’s motion to suppress the

evidence because the possession of marijuana, while criminal, may result in the

issuance of a summons, rather than an arrest. The Supreme Court found that the

district court erred. The court stated that an officer may arrest a person who

commits a misdemeanor in the officer’s presence. The court found that the

defendant, during a Terry stop based on reasonable suspicion, was found to be in

possession of marijuana. Therefore, he was subject to arrest. The court therefore

reversed the district court’s ruling that granted the defendant’s motion to suppress.

Id.

As indicated in Jackson, even though the marijuana in the present case was a

small amount, defendant was still subject to arrest at that point. Accordingly,

defendant’s arrest was lawful and the evidence and statement obtained after that

arrest do not require suppression based on the arrest.

In light of the above, based on the totality of the circumstances presented,

we find that the trial court did not abuse its discretion in denying defendant’s

Motion to Suppress. Accordingly, defendant’s arguments on appeal are without

merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920,

State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175

(La. App. 5th Cir. 1990).

An error patent concerning defendant’s sentencing was discovered. At

sentencing, the judge indicated that defendant’s sentence was deferred under

Article 893.8 However, a deferred sentence is not available to a defendant for a

After accepting defendant’s guilty plea for possession with intent to distribute
8

marijuana, defendant was sentenced to “five years with the Department of Corrections, deferred,
under Article 893; three years active probation.”

22-KA-499 10

violation of La. R.S. 40:966(A)(2). La. C.Cr.P. art. 893 provides guidelines for

both suspension and deferment of sentences. La. C.Cr.P. art. 893(E)(1)(b)

specifically prohibits deferment of a sentence for a conviction under La. R.S.

40:966(A), which is the offense defendant pled guilty to in the instant case.9 See

State v. Flynn, 17-1327 (La. App. 1 Cir. 4/11/18), 249 So.3d 834, 837.

Considering the foregoing, defendant’s deferred sentence, which is

specifically prohibited by La. C.Cr.P. art. 893(E)(1)(b), is hereby vacated. We

remand this matter for resentencing in accordance with the law. Further, since it

appears from the record on appeal that defendant entered his guilty plea under

Article 893 because he wanted his sentence deferred, we reserve unto defendant

the right to withdraw his guilty plea.

DECREE

For the foregoing reasons, defendant’s conviction is affirmed, defendant’s

sentence is vacated, and the matter is remand to the trial court for resentencing,

reserving unto defendant the right to withdraw his guilty plea.

CONVICTION AFFIRMED; SENTENCE
VACATED; REMANDED FOR RESENTENCING,
WITH RESERVATION UNTO DEFENDANT TO
WITHDRAW GUILTY PLEA

9
La. C.Cr.P. art. 893(E)(1)(b) provides, in pertinent part: “The court shall not defer a
sentence under this provision … for a violation of R.S. 40:966(A) … .”

22-KA-499 11

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 24, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KA-499
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE CONNIE M. AUCOIN (DISTRICT JUDGE)
LOUIS G. AUTHEMENT (APPELLEE) KATHERINE M. FRANKS (APPELLANT)

MAILED
HON. HONORABLE JOEL T. CHAISSON, II
(APPELLEE)
DISTRICT ATTORNEY
TWENTY-NINTH JUDICIAL DISTRICT
COURT
POST OFFICE BOX 680
HAHNVILLE, LA 70057